Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes (i) This Condition 9(a) shall apply only to Senior Notes. (ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required): (A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or (B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or (C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or (D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or (E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or (F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or (G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or (H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor. (iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a): (i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank: (a) indebtedness for moneys borrowed in respect of retail deposits held by such entity; (b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and (c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);
Appears in 1 contract
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) Any one or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any more of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank” hereunder:
(a) indebtedness default in the payment when due of all or any part of the principal of any Loan (whether at the stated maturity thereof or at any other time provided for moneys borrowed in respect this Agreement); or default for a period of retail deposits held by such entitythree (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) indebtedness for moneys borrowed in respect of agreements default in the ordinary course observance or performance of business any covenant set forth in Sections 8.1 (only with respect to purchase the first sentence thereof), 8.5 (for a period of five (5) days), 8.7, 8.8, 8.9, 8.10, 8.20, 8.21 (if not replaced with another Eligible Property or repurchase securities Eligible Properties in accordance with Section 7.3 hereof within ten (10) Business Days after the period of notice required by Section 7.3), 8.23 or loans; and8.25 hereof;
(c) contingent liabilities incurred default in the ordinary course observance or performance of banking business any other provision hereof or of any other Loan Document which is not remedied within thirty (including banker’s acceptances30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of the Borrower or (ii) written notice thereof is given to the Borrower by the Administrative Agent; provided, trade acceptanceshowever, letters if such a default is susceptible of credit and finance acceptance), cure but cannot reasonably be cured within such thirty (30) day period and provided further that each the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such default, provided such additional period shall not exceed sixty (60) days;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the foregoing items date of the issuance or making or deemed making thereof; provided, that such breach of a representation or warranty shall not constitute an Event of Default if within ten (10) days of the Borrower’s knowledge of such breach, the Borrower takes such action as may be required to make such representation or warranty to be true in this definition all material respects as made and it did not have a Material Adverse Effect;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (and the related grace period, if any, shall have expired), or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void except as expressly permitted by the terms hereof;
(f) default and expiration of any cure periods related thereto shall occur under (x) any Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $10,000,000 or (y) any recourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $1,000,000, or a default and expiration of any cure periods related thereto, shall occur under any indenture, agreement or other instrument under which such Indebtedness for Borrowed Money may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be deemed to constitute indebtedness for moneys borrowed only entered or filed against the Borrower or any Subsidiary, or against any of its Property, in an aggregate amount in excess of $5,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or in the case of contingent obligations, the indebtedness any Material Subsidiary shall (i) have entered involuntarily against it an order for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or relief under the United States (Bankruptcy Code, as the case may be);amended,
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening occurrence of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any one or more of the following events is an Event of Default (each, an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required”):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary to the Lenders or the Administrative Agent under or in respect of retail deposits held by such entityconnection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document is materially false on the date made or confirmed;
(b) indebtedness for moneys borrowed in respect nonpayment of agreements in (i) principal of any Loan or any Reimbursement Obligation when due or (ii) interest upon any Loan, any unused fee or L/C Fee, or any other obligation under any of the ordinary course of business to purchase or repurchase securities or loans; andLoan Documents within three Business Days after it becomes due;
(c) contingent liabilities incurred the breach of any of the provisions of Section 6.1, 6.2, 6.3, 6.4, 6.6, 6.7(b) and 6.12 or Article VII;
(d) the breach (other than a breach that is an Event of Default under another clause of this Section 8.1) of any of the terms or provisions of this Agreement or any other Loan Document that is not remedied within 30 days after the earlier of (i) the Borrower becoming aware of such breach and (ii) the Administrative Agent notifying the Borrower of such breach; provided if there is an express cure or required time period specified under the applicable Loan Document, that cure period shall apply
(i) default by the Borrower or any Material Subsidiary in the ordinary course payment when due and continuance after any applicable grace period of banking business such default of Indebtedness (including banker’s acceptances, trade acceptances, letters other than pursuant to this Agreement and the Loan Documents) when the aggregate amount of credit such Indebtedness due and finance acceptance)payable is $10,000,000 or more, and provided further that each of (ii) the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to default (beyond any applicable grace period) by the extent it would be (Borrower or any Material Subsidiary in the case performance of contingent obligationsany term, provision or condition with respect to such Indebtedness, or any other event or condition, that causes, or permits the indebtedness for moneys borrowed holder(s) of such Indebtedness or the primary obligor would belender(s) required in connection therewith to cause, any portion of such Indebtedness that is $10,000,000 or more to become due before its stated maturity or any commitment of such holders or lenders to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be)terminated before its stated expiration date;
Appears in 1 contract
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any Each of the following events (is an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include ” with respect to any entity which is a bankthe Securities:
(a) indebtedness failure to pay interest on any Security when such interest becomes due and payable and such default is continued for moneys borrowed in respect of retail deposits held by such entity30 days;
(b) indebtedness for moneys borrowed in respect failure to pay principal of agreements in (or premium including the ordinary course of business to purchase or repurchase securities or loans; andMake-Whole Premium, if any, on) any Security when it becomes due and payable;
(c) contingent liabilities incurred failure by the Company to make an offer in connection with a Change of Control Repurchase Event in accordance with the provisions described under Section 4.02 of this Indenture;
(d) failure to comply with any covenant or agreement in this Indenture in respect of the Securities, and such default or breach is continued for 90 days (or 150 days with respect to Section 4.09 of this Indenture; provided, however, that beginning on the 91st day the Note Parties are not in compliance with Section 4.09, additional interest at a rate of 0.25% per annum shall become due and payable (in the ordinary course same manner and at the same time as regular interest payments) on the Securities until such covenant is complied with) after there has been given to the Company a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of banking Default” hereunder by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal of Outstanding Securities affected thereby (other than a default in performance, or breach, of a covenant or agreement specifically dealt with in clauses (a), (b) or (c) above);
(e) any Securities Guarantee ceases to be in full force and effect (other than in accordance with the terms of such Securities Guarantee or pursuant to the terms of this Indenture or other applicable Note Document) or any Guarantor denies or disaffirms its obligations under its Securities Guarantee;
(f) the Company or any other Note Party pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of a Bankruptcy Custodian of it or for all or substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect for 90 days and that:
(1) is for relief against the Company or any other Note Party as debtor in an involuntary case,
(2) appoints a Bankruptcy Custodian of the Company or any other Note Party or a Bankruptcy Custodian for all or substantially all of the property of the Company, or any other Note Party or
(3) orders the liquidation of the Company or any other Note Party;
(h) except as permitted by the Note Documents, the Security Documents shall for any reason cease to create a valid and perfected first-priority Lien (subject to Permitted Collateral Liens) on any portion of the Collateral having a fair market value in excess of $25,000,000 (in each case, other than in accordance with the terms of this Indenture or the terms of the Security Documents); provided that if such failure is susceptible to cure, no Event of Default shall arise with respect thereto until 45 days after any Officer of any Collateral Grantor becomes aware of such failure, which failure has not been cured during such time period, or (ii) any Collateral Grantor asserts in writing that any Lien created under the Security Documents is invalid or unenforceable; or
(i) if Chevron U.S.A. Inc. (or any other entity that is the counterparty under the Drilling Contract) is more than 120 days late with respect to the making of any payment due under the Drilling Contract, the failure by the Collateral Rig Operator to actively pursue remedies under the Drilling Contract with respect to such nonpayment. Upon the occurrence of an Event of Default pursuant to this Section 6.01 with respect to Securities all or part of which is represented by a Global Security, a record date shall automatically and without any other action taken by any Person be set for the purpose of determining the Holders of Outstanding Securities entitled to join in any Notice of Default, which record date shall be the close of business on the day the Trustee shall have received such Notice of Default. The Holders of Outstanding Securities on such record date (including banker’s acceptances, trade acceptances, letters of credit and finance acceptanceor their duly appointed agents), and only such Persons, shall be entitled to join in such Notice of Default, whether or not such Holders remain Holders after such record date; provided further that each that, unless such Notice of Default shall have become effective by virtue of Holders of the foregoing items requisite principal amount of Outstanding Securities on such record date (or their duly appointed agents) having joined in such Notice of Default prior to the day which is 90 days after such record date, such Notice of Default shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this definition paragraph shall prevent a Holder (or duly appointed agent thereof) from giving, before or after expiration of such 90-day period, a Notice of Default contrary to or different from a Notice of Default previously given by a Holder, or from giving, after the expiration of such period, a Notice of Default identical to a Notice of Default that has been cancelled pursuant to the proviso to the preceding sentence, in any of which events a record date in respect thereof shall be deemed to constitute indebtedness for moneys borrowed only set pursuant to the extent it would be (or in the case provisions of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);this Section 6.01.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) Any one or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any more of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank” hereunder:
(a) indebtedness default in the payment when due of all or any part of the principal of any Loan (whether at the stated maturity thereof or at any other time provided for moneys borrowed in respect this Agreement); or default for a period of retail deposits held by such entitythree (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) indebtedness for moneys borrowed in respect of agreements default in the ordinary course observance or performance of business any covenant set forth in Sections 8.1 (only with respect to purchase the first sentence thereof), 8.5 (for a period of five (5) days), 8.7, 8.8, 8.9, 8.10, 8.20, 8.21 (if not replaced with another Eligible Property or repurchase securities Eligible Properties in accordance with Section 7.3 hereof within ten (10) Business Days after the period of notice required by Section 7.3), 8.23 or loans; and8.25 hereof;
(c) contingent liabilities incurred default in the ordinary course observance or performance of banking business any other provision hereof or of any other Loan Document which is not remedied within thirty (including banker’s acceptances30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of the Borrower or (ii) written notice thereof is given to the Borrower by the Administrative Agent; provided, trade acceptanceshowever, letters if such a default is susceptible of credit and finance acceptance), cure but cannot reasonably be cured within such thirty (30) day period and provided further that each the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such default, provided such additional period shall not exceed sixty (60) days;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the foregoing items date of the issuance or making or deemed making thereof; provided, that such breach of a representation or warranty shall not constitute an Event of Default if within ten (10) days of the Borrower’s knowledge of such breach, the Borrower takes such action as may be required to make such representation or warranty to be true in this definition all material respects as made and it did not have a Material Adverse Effect;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (and the related grace period, if any, shall have expired), or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void except as expressly permitted by the terms hereof;
(f) default and expiration of any cure periods related thereto shall occur under (x) any Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $10,000,000 or (y) any recourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $1,000,000, or a default and expiration of any cure periods related thereto, shall occur under any indenture, agreement or other instrument under which such Indebtedness for Borrowed Money may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be deemed to constitute indebtedness for moneys borrowed only entered or filed against the Borrower or any Subsidiary, or against any of its Property, in an aggregate amount in excess of $5,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or in the case of contingent obligations, the indebtedness any Material Subsidiary shall (i) have entered involuntarily against it an order for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the case may be)benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it within sixty (60) days, (vi) take any board of director or shareholder action (including the convening of a meeting) in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 9.1(k) hereof;
(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Subsidiary, or any substantial part of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted against the Borrower or any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(l) the Common Stock of Parent fails to be duly listed on the New York Stock Exchange, the NYSE American or The NASDAQ Stock Market; or
(m) any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than in accordance with the terms hereof or thereof, or satisfaction in full or all the Obligations, is revoked, terminated, cancelled or rescinded, without the prior written approval of the Administrative Agent; or the Borrower or any Guarantor commences any legal proceeding at law or in equity to contest, or make unenforceable, cancel, revoke or rescind any of the Loan Documents, or any court or any other Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Xxxxxx of Default. Each of the following shall be an “Event of Default” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:
(a) Events Any Borrower fails to pay (i) any principal payments or interest payments with respect to the Obligations when due, whether at stated maturity, on demand, upon acceleration or otherwise or (ii) any fees, costs and expenses, or other Obligations, within 5 Business Days of Default the due date applicable thereto;
(b) Any representation, warranty or other written statement of an Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given;
(c) A Borrower breaches or fail to perform any covenant contained in Section 7.2, 7.6, 8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2, 10.2 or 10.3;
(d) An Obligor breaches or fails to perform any other covenant contained in any Loan Documents, and Enforcement such breach or failure is not cured within 30 days after a Senior Officer of such Obligor has knowledge thereof or receives notice thereof from Lender, whichever is sooner; provided, that such notice and opportunity to cure shall not apply if the breach or failure to perform is not capable of being cured within such period or is a willful breach by an Obligor;
(e) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; an Obligor or third party denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Lender; it is unlawful for an Obligor to perform any of its obligations under a Loan Document; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Lender);
(f) Any breach or default of an Obligor occurs under (i) any Swap; or (ii) any instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating only to Senior Notesany Debt (other than the Obligations) in excess of $500,000, if the maturity of or any payment with respect to such Debt could be accelerated or demanded due to such breach (whether or not any applicable grace period or notice has been satisfied);
(g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $500,000 (net of insurance coverage therefor that has not been denied by the insurer), and the same shall remain undischarged for a period of 30 consecutive days during which a stay of enforcement of such judgment or order is not in effect;
(h) A loss, theft, damage or destruction occurs with respect to any Collateral if the amount not covered by insurance exceeds $2,000,000;
(i) This Condition 9(a) shall apply only to Senior Notes.
An Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any part of its business; (ii) The Trustee at its discretion mayan Obligor suffers the loss, and if so requested in writing by the holders revocation or termination of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) any license, permit, lease or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified agreement necessary to its satisfaction)business; (iii) there is a cessation of any part of an Obligor’s business for a period of time; (iv) any Collateral or Property of an Obligor is taken or impaired through condemnation; (v) an Obligor agrees to or commences any liquidation, dissolution or winding up of its affairs; or (but, vi) an Obligor is not Solvent; and in the case of the happening (i), (ii), (iii), and (iv), such event or occurrence would reasonably be expected to result in a Material Adverse Effect;
(i) An Insolvency Proceeding is commenced by an Obligor, or an Obligor makes an offer of settlement, extension or composition to its unsecured creditors generally; or (ii) a trustee is appointed to take possession of any substantial Property of or to operate any of the events mentioned business of an Obligor, or an Insolvency Proceeding is commenced against an Obligor, and, in sub-paragraphs (B)either case, (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing Obligor consents to the Issuer appointment of the trustee or the institution of the proceeding, as applicable, the appointment or petition commencing the proceeding is not timely contested by the Obligor, the appointment or petition is not dismissed within 30 days after filing, or an order for relief is entered in the proceeding;
(k) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that such has resulted or could reasonably be expected to result in liability of an Obligor to a Pension Plan, Multiemployer Plan or PBGC, or that constitutes grounds for appointment of a trustee for or termination by the PBGC of any Pension Plan or Multiemployer Plan; an Obligor or ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or any event is, in its opinion, materially prejudicial similar to the interests foregoing occurs or exists with respect to a Foreign Plan;
(l) An Obligor is criminally indicted or convicted for (i) a felony committed in the conduct of the NoteholdersObligor’s business, or (ii) give notice to violating any state or federal law (including the Issuer that the Notes areControlled Substances Act, Money Laundering Control Act of 1986 and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if anyIllegal Exportation of War Materials Act) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (Di) or (F) below in respect ii), could lead to forfeiture of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor Property or any other formality required):
(A) if default is made Collateral having a fair market value in the payment excess of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days$2,000,000; or
(Bm) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation A Change of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remediedControl occurs; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders event occurs or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within condition exists that has a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);Material Adverse Effect.
Appears in 1 contract
Samples: Loan and Security Agreement (Servicesource International, Inc.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any Any of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank”:
(a) indebtedness for moneys borrowed in respect failure to pay principal of retail deposits held by such entityor premium, if any, on any Loan when due;
(b) indebtedness failure to pay any interest on any Loan when due hereunder or any amount payable under the Agency Fee Letter when due thereunder, in each case which failure continues for moneys borrowed in respect of agreements in 30 calendar days past the ordinary course of business to purchase or repurchase securities or loans; andapplicable due date;
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each any representation or warranty made or deemed made by or on behalf of the foregoing items Borrower or any Subsidiary in this definition or in connection with any Credit Document or any amendment or modification of any Credit Document or waiver under such Credit Document, or in any report, certificate, financial statement or other document furnished pursuant to the provisions hereof or any Credit Document or any amendment or modification thereof or waiver thereunder, shall be prove to have been incorrect in any material respect when made or deemed to constitute indebtedness for moneys borrowed only made (or, to the extent it would be that any such representation and warranty is qualified by materiality, any such representation and warranty (as so qualified) shall prove to have been incorrect in any respect when made or deemed made);
(d) failure by the Borrower or any Subsidiary to comply with its obligations under Section 8.02, Section 8.03 (as to the existence of the Borrower or such Subsidiary only), Section 8.13 or 9.09, or to make an Asset Disposition Offer or prepayment pursuant thereto when required to do so by the terms hereof;
(e) failure by the Borrower or any Subsidiary to perform, or breach of, any other covenant of the Borrower in this Agreement or of the Borrower or such Subsidiary in any other Credit Document (other than which is covered by clause (d) above), which failure or breach continues for 30 calendar days after the receipt of written notice thereof from the Administrative Agent or the Borrower;
(f) a Change of Control shall have occurred; or
(g) (i) any default in the payment when due of the principal amount of, or interest on, any other Debt of the Borrower or a Significant Subsidiary, the unpaid principal amount of which is not less than $10,000,000, in each case beyond any applicable grace period set forth in any agreement or instrument relating to such Debt, or (ii) any other default (beyond any applicable grace period) under any agreement or instrument relating to such Debt occurs, which, which default in the case of contingent obligations, clause (ii) results in the indebtedness for moneys borrowed acceleration of the primary obligor would bematurity of such Debt on or prior to its Stated Maturity or at the time of final maturity thereof;
(h) required the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Borrower or a Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Borrower or a Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Borrower or a Significant Subsidiary under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Borrower (or a Significant Subsidiary) or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days;
(i) the commencement by the Borrower or a Significant Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be reflected as adjudicated a liability by generally accepted accounting principles in England and Wales bankrupt or insolvent, or the United States consent by it to the entry of a decree or order for relief in respect of the Borrower or a Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief with respect to the Borrower or a Significant Subsidiary under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Borrower (or a Significant Subsidiary) or of any substantial part of its property pursuant to any such law, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Borrower or a Significant Subsidiary in furtherance of any such action;
(j) failure by the Borrower or any Significant Subsidiary or group of Subsidiaries that, taken together (as of the case may belatest audited consolidated financial statements for the Borrower and its Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $5,500,000 (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 calendar days;
(k) the occurrence of an ERISA Event that has resulted or would reasonably be expected to result in a Material Adverse Change; or
(l) any of the Credit Documents after delivery thereof shall for any reason, except to the extent permitted by the terms thereof, cease to be in full force and effect and valid, binding and enforceable in accordance with their terms against the Borrower or a Subsidiary Guarantor party thereto or shall be repudiated by any of them in writing, or any of the Security Instruments with respect to any Collateral, individually or in the aggregate, having a fair market value in excess of $15,000,000 shall cease to create a valid and perfected Lien of the priority required thereby on any of the collateral purported to be covered thereby, except to the extent permitted by the terms of this Agreement, or the Borrower or any Subsidiary or any of their Affiliates shall so state in writing.
Appears in 1 contract
Xxxxxx of Default. (a) Events An “Event of Default and Enforcement relating only to Senior Notes
Default” is: (i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested a default in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest amount due in respect of the Notes or any of them and, in the case of interest, such hereunder which default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 two (2) business days after the due date thereof; (ii) a default in the timely issuance of Underlying Shares upon and in accordance with terms hereof, which default continues for two (2) Business Days after the Company has received notice informing the Company that it has failed to issue shares or such longer period as deliver stock certificates within the Trustee may permitsecond (2nd) day following service the Conversion Date; (iii) failure by the Trustee on Company for two (2) days after notice has been received by the Issuer Company to comply with any material provision of the Exchange Agreement (including without limitation the failure to issue the requisite number of shares of Common Stock upon conversion hereof and the failure to redeem Notes upon the Holder’s request following a Change in Control Transaction pursuant to Section 1(c); (iv) any default after any cure period under, or the Guarantor (as the case acceleration prior to maturity of, any mortgage, indenture or instrument under which there may be) of notice requiring the same to be remedied; or
(C) if issued or by which there may be secured or evidenced any indebtedness for moneys money borrowed by the Company in excess of $50,000 or for money borrowed the repayment of which is guaranteed by the Company in excess of $50,000, whether such indebtedness or guarantee now exists or shall be created hereafter; (which indebtedness has an outstanding aggregate principal amount v) any failure of at least the Specified AmountCompany to satisfy its “filing” obligations under the rules and guidelines issued by OTC Markets News Service, OTC Xxxxxxx.xxx and their affiliates; (vi) any failure of the Company to issue all of the shares of the Company’s Common Stock due the Holder upon conversion of this Note; (vii) failure to have sufficient number of authorized and non-reserved but unissued shares of the Company’s Common Stock available for any said conversion; (ix) any delisting for any reason; (viii) any trading suspension imposed by the Securities and Exchange Commission under Sections 12(j) or 12(k) of the Issuer 1934 Act; or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(Ex) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or Company is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect subject to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);Bankruptcy Event.
Appears in 1 contract
Samples: Note (Frozen Food Gift Group, Inc)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by Upon the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening occurrence of any of the events mentioned following events:
(a) The Borrower shall fail to pay (i) any principal of any Loans or any Reimbursement Obligations when due (whether at the stated maturity, by acceleration or otherwise) in sub-paragraphs accordance with the terms thereof or hereof, provided, that, if any failure to make a payment of principal when due by the Borrower is a result of the Administrative Agent failing to exercise its rights under Section 4.1 to automatically deduct such amount from the Borrower’s Account at a time when the Borrower had an amount on deposit in the Borrower’s Account sufficient to make such payment, then, unless prior to the date such payment is due the Administrative Agent has notified the Borrower in writing that it will not deduct such amount from the Borrower’s Account on the date such payment is due, the Borrower will have ten (B10) days from the date such payment was due to make such payment or (ii) any interest on any Loans, or any fee or other amount payable hereunder, within ten (10) days after any such interest, fee or other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the Borrower or any other Loan Party herein or in any other Loan Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished; or
(c) The Borrower or any other Loan Party shall default in the observance or performance of any covenant contained in Section 8, Section 7.1, Section 7.2 or Section 7.7(a) (to the extent relating to notice of an Event of Default) hereof or in any negative covenant contained in any Security Document to which it is a party; provided, that, if the Borrower obtains extensions from the Securities and Exchange Commission (“SEC”) with respect to the filing of any of its quarterly or annual financial statements with the SEC, then the date(s) for the deliveries to be made under Section 7.1 and Section 7.2 hereof, as applicable, will be extended to give effect to the length of such extensions, but not to exceed thirty (30) days (the “Extension Period”); or
(d) [Reserved]; or
(e) The Borrower or any other Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document other than as provided in (a), (Cb), (E)c) or (d) above, and such default shall continue unremedied for a period of fifteen (F)15) days, after the earlier to occur of (GA) actual knowledge of such default by a Responsible Officer of the Borrower and (HB) below, only if notice from the Trustee shall have certified in writing Administrative Agent to the Issuer that such event isBorrower; or
(f) Any Loan Document shall cease, for any reason, to be in its opinionfull force and effect, materially prejudicial to or the interests of the Noteholders) give notice to the Issuer that the Notes are, and they Borrower or any other Loan Party shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued so assert; or any security interest (if any) as provided in the Trust Deed, if created by any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, Security Documents in the case a material portion of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect Collateral shall cease to be enforceable and of the Guarantor, the Notes shall become immediately same effect and automatically due and payable without any declaration or other notice priority purported to the Issuer or the Guarantor be created thereby; or
(g) The Borrower or any of its Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other formality required):
(A) if default is made than Indebtedness under this Agreement), in the payment of any principalGuarantee Obligation or in the payment of any Hedge Agreement Obligation beyond the period of grace, premium (if any, provided in the instrument or agreement under which such Indebtedness, Guarantee Obligation or Hedge Agreement Obligation was created; or (ii) default in the observance or interest performance of any other agreement or condition relating to any such Indebtedness, Guarantee Obligation or Hedge Agreement Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or Hedge Agreement Obligation or, beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable; or
(i) The Borrower, any Domestic Subsidiary or any Foreign Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Borrower, any Domestic Subsidiary or any Foreign Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower, any Domestic Subsidiary or any Foreign Subsidiary any case, proceeding or other action of a nature referred to in respect clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower, any Domestic Subsidiary or any Foreign Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower, any Domestic Subsidiary or any Foreign Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Notes acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower, any Domestic Subsidiary or any of them andForeign Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(i) One or more ERISA Events shall have occurred that, in the case opinion of interestthe Required Lenders, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect and, only if such ERISA Event can be cured, such default continues ERISA Event has not been cured for a period of 30 days; or
(Bj) if One or more judgments or decrees shall be entered against the Issuer Borrower or any of its Subsidiaries that, in the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation opinion of the Issuer Required Lenders, would, individually or in the Guarantor for aggregate, reasonably be expected to result in a Material Adverse Effect and, such judgment has not been paid pursuant to its terms, vacated, discharged, stayed or bonded pending appeal within 30 days from the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remediedentry thereof; or
(Ci) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer Any Person or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary “group” (within the meaning of Section 736 13(d) or 15(d) of the Companies Act 1985) directly Exchange Act), other than any Person or indirectly, group beneficially owning 15% or more of the Guarantor.
Capital Stock of the Borrower on the date hereof (A) shall have acquired, combined with previous holdings, beneficial ownership of 33% or more of any outstanding class of Capital Stock of the Borrower having ordinary voting power in the election of directors or (B) shall obtain the power (whether or not exercised) to elect a majority of the Borrower’s directors; or (ii) the Board of Directors of the Borrower shall not consist of a majority of Continuing Directors; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (h) above with respect to the Borrower automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all Reimbursement Obligations, regardless of whether or not such Reimbursement Obligations are then due and payable) shall immediately become due and payable, and (B) if such event is any other Event of Default, any of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the direction of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the direction of the Required Lenders, the Administrative Agent shall, by notice of default to the Borrower declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all Reimbursement Obligations, regardless of whether or not such Reimbursement Obligations are then due and payable) to be due and payable forthwith, whereupon the same shall immediately become due and payable and (iii) At with the consent of the Required Lenders the Administrative Agent and Collateral Agent may, and upon the direction of the Required Lenders, the Administrative Agent and Collateral Agent shall, exercise any and all remedies and other rights provided pursuant to this Agreement and/or the other Loan Documents. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Lender and the Participating Lenders, a security interest in such cash collateral to secure all obligations of the Borrower under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after the Notes or any all such Letters of them Credit shall have become due and repayable and have not expired or been repaidfully drawn upon, the Trustee mayif any, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit shall be applied to enforce repayment thereof together with accrued interest and to enforce the provisions repay other obligations of the Trust DeedBorrower hereunder and under the Notes. After all such Letters of Credit shall have expired or been fully drawn upon, but it shall not be bound to institute any such proceedings unless (a) it all Reimbursement Obligations shall have been so directed by an Extraordinary Resolution satisfied and all other obligations of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of Borrower hereunder and under the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholderpaid in full, Receiptholder or Couponholder the balance, if any, in such cash collateral account shall be entitled returned to proceed against the Issuer or Borrower. The Borrower shall execute and deliver to the Guarantor unless Administrative Agent, for the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each account of the foregoing items Issuing Lender and the Participating Lenders, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the within security interest in such cash collateral account. Except as expressly provided in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case Agreement, presentment, demand, protest and all other notices of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);any kind are hereby expressly waived.
Appears in 1 contract
Samples: Credit Agreement (Napco Security Technologies, Inc)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if If any of the following events (“Events of Default“”) shall have occurred occur and be continuing continuing:
(provided that, in i) the case of the occurrence Borrower shall fail to pay any principal of any event or events set forth in sub-paragraphs (D) or (F) below in respect of Loan when the Guarantor, the Notes same shall become immediately and automatically due and payable without or (ii) the Borrower shall fail to pay any declaration interest on any Loan, or any Loan Party shall fail to make any other notice payment under any Loan Document, when the same becomes due and payable within five (5) Business Days after the same becomes due and payable, provided, however that this grace period shall only be available to the Issuer or the Guarantor or Borrower twice during any other formality required):
twelve (A12) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 daysconsecutive month period; or
(Bb) any representation or warranty made by any Loan Party (or any of its officers) under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made if such violation shall remain unremedied for ten (10) days after the Issuer earlier of the date on which (i) a Responsible Officer becomes aware or should become aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or the Guarantor fails Lenders; or
(c) the Borrower shall fail to performperform or observe any term, covenant or agreement contained in Sections 2.01(d), 5.01(e), (f), (i), or (j), 5.02, 5.03, or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term, covenant or comply with agreement contained in any obligation, condition Loan Document on its part to be performed or provision binding observed if such failure shall remain unremedied for ten (10) days after the earlier of the date on it under these Terms and Conditions which (i) a Responsible Officer becomes aware or should become aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or the Trust Deed Lenders; or
(other than e) (i) (A) any obligation Loan Party or any of the Issuer or the Guarantor for the payment of its Subsidiaries shall fail to pay any principal or of, premium or interest on or any other amount payable in respect of the Notes) and any Debt of such failure continues for more than 90 days (Loan Party or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor Subsidiary (as the case may be) of notice requiring that is outstanding (but excluding Debt outstanding hereunder), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), or (B) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt, if the effect of such failure to pay under clause (i)(A), or the effect of such event or condition under clause (i)(B), is to accelerate the maturity of such Debt or otherwise to cause the holder thereof to cause, such Debt to mature; or (ii) any such Debt shall be declared to be remedieddue and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased, or defeased, or an offer to prepay, redeem, purchase, or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(Cf) if any indebtedness Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for moneys borrowed the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency, or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (which indebtedness has an outstanding aggregate principal amount but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of at least the Specified Amount) 30 days or any of the Issuer actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the Guarantor is not paid on appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its due date property) shall occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amountf); or
(Dg) ifany judgments or orders, otherwise than either individually or in the aggregate, for the purposes payment of money in excess of $500,000 shall be rendered against any Loan Party or any of its Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a reconstruction pending appeal or amalgamation on terms previously approved otherwise, shall not be in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantoreffect; or
(Eh) if the Issuer any non-monetary judgment or the Guarantor ceases order shall be rendered against any Loan Party or threatens to cease to carry on the whole or substantially the whole any of its businessSubsidiaries that could have a Material Adverse Effect, save for the purposes and there shall be any period of reorganisation on terms approved 10 consecutive days during which a stay of enforcement of such judgment or order, by the Trustee reason of a pending appeal or an Extraordinary Resolution of the Noteholdersotherwise, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolventshall not be in effect; or
(Fi) any provision of any Loan Document after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid and binding on or enforceable against any Loan Party party to it, or any such Loan Party shall so state in writing if such violation shall remain unremedied for ten (A10) an order is made against days after the Issuer earlier of the date on which (i) a Responsible Officer becomes aware or should become aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 daysLenders; or
(Gj) if any Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or Section 5.01(j) shall for any reason (other than pursuant to the Issuer terms thereof or as a consequence of the actions or inactions of Lender or Administrative Agent) cease to create a valid and perfected lien on and security interest in the Collateral purported to be covered thereby (subject only to the Permitted Liens) and such violation shall remain unremedied for ten (10) days after the earlier of the date on which (i) a Responsible Officer becomes aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar lawsLenders; or
(Hk) a Change of Control shall occur; or
(l) the Issuer Borrower shall fail to timely perform its material obligations under the Comvest Warrant Purchase Agreement or the Comvest Warrant or shall otherwise be in material default under the Comvest Warrant Purchase Agreement or the Comvest Warrant; or
(m) the Borrower defaults under a Material Contract and fails to cure such default within the time specified in the Material Contract; or any Local Agreements or the State Agreement ceases to be a subsidiary (within in full force and effect for any reason other than the meaning of Section 736 end of the Companies Act 1985term of those agreements; or
(n) directly or indirectly, the Borrower ceases to own at least fifty one percent (51%) of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested Equity Interests in writing by the holders of at least one-quarter in nominal amount of the Notes then outstandingDD; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);or
Appears in 1 contract
Samples: Credit Agreement (Digital Domain Media Group, Inc.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any 6.1 Any of the following events shall be deemed an event of default:
6.1.1 If Party B or the Pledgors are in breach of any of their undertakings, covenants or warranties, or fail to pay in full any costs, expenses or debts due and payable under the Restructuring Agreements.
6.1.2 If the Pledgors are in breach of any provision of this Agreement (“Events including the representations and warranties under Article 4);
6.1.3 If the Pledgors fail to exercise any rights incidental to the Equity Interest pledged hereunder, or transfer such Equity Interest to any third party without prior written consent of Default“the Pledgee;
6.1.4 If any loan, debt, security, indemnity, undertaking or any other liability to which the Pledgors are party or which are binding on the Pledgors (1) shall have occurred is required to be paid or satisfied prior to its original scheduled date, or (2) becomes due and payable or requires to be satisfied but is not paid or satisfied at the scheduled time, as a result of which the Pledgee believes that the Pledgors’ ability to perform such obligations has been compromised.
6.1.5 If any Restructuring Agreement becomes illegal due to the promulgation of any relevant laws, or the Pledgors are unable to continue to perform any obligations under any Restructuring Agreement;
6.1.6 If any approval, permit, license or authorization obtained from relevant government authorities requisite for the performance of any Restructuring Agreement or the effectiveness or continuing validity of any Restructuring Agreement has been cancelled, suspended, voided or substantially modified;
6.1.7 If the properties of the Pledgors suffer any adverse change, as a result of which Party A believes that the Pledgors’ ability to perform their obligations under this Agreement or the Restructuring Agreement has been adversely affected;
6.1.8 If Party B ceases its operation, is dissolved or is ordered to cease its operation, or is threatened with dissolution or bankruptcy;
6.1.9 If any Pledgor and/or Party B are/is involved in any dispute, lawsuit, arbitration, administrative proceeding or any other legal proceeding or governmental inquiry, action or investigation, as a result of which the Pledgee reasonably believes that: (provided thati) any Pledgor’s ability to perform the obligations under this Agreement or any Restructuring Agreement has been materially and adversely affected thereby, in or (ii) the case Company’s ability to perform its obligations under any Restructuring Agreement has been materially and adversely affected;
6.2 If the Pledgors know or become aware of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantorunder Article 6.1, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee circumstance that may give rise to such events has occurred or is occurring, the Pledgors shall forthwith notify Party A in writing.
6.3 Unless any Event of or indemnity in respect Default under Article 6.1 has been resolved to the satisfaction of Party A, Party A may at any payment in respect of indebtedness for moneys borrowed of any third party given time by serving a default notice (Default Notice) on the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution Pledgors exercise its right to dispose of the Noteholders, an order is made Equity Interest during or an effective resolution is passed for after the winding up occurrence of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole Event of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the GuarantorDefault.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);
Appears in 1 contract
Samples: Share Pledge Agreement (LightInTheBox Holding Co., Ltd.)
Xxxxxx of Default. (a) Events Each of Default and Enforcement relating only to Senior Notesthe following shall be an “Event of Default”:
(i) This Condition 9(adefault for 30 days in payment of any interest (including any Additional Interest) shall apply only to Senior when due and payable on the Notes.;
(ii) The Trustee at its discretion may, and if so requested default in writing by the holders payment of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening principal of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically Note when due and payable without any at maturity, upon redemption, upon required repurchase, upon declaration of acceleration or other otherwise;
(iii) default in the obligations of the Company to satisfy the Conversion Obligation upon exercise of a Holder’s conversion right and such default is not cured or such conversion is not rescinded within three Business Days;
(iv) failure by the Company to comply with its obligations under Article 11;
(v) default in the notice to obligations under Section 14.03, Section 15.01, Section 15.02, or Article 16;
(vi) default by the Issuer or the Guarantor Company or any other formality required):
(A) if default is made of its Significant Subsidiaries in the payment of any principal, interest or premium when due under any other instruments of Indebtedness having an aggregate outstanding principal amount US$50 million (if anyor its equivalent in any other currency or currencies) or interest due more in respect the aggregate of the Notes Company and/or any Subsidiary of the Company, whether such Indebtedness now exists or shall hereafter be created, which default results (A) in such Indebtedness becoming or being declared due and payable or (B) from a failure to pay the principal of any such Indebtedness when due and payable at its stated maturity, upon redemption, upon required purchase, upon declaration of them acceleration or otherwise and, in the case of interesteach case, such default continues for a more than 30 days after the expiration of any grace period or extension of 30 daystime for payment applicable thereto; orprovided that any such Event of Default shall be deemed cured and not continuing upon payment of such Indebtedness, rescission of such declaration of acceleration or waiver or with consent of the lender;
(Bvii) if default by the Issuer Company in the performance of any other covenants or agreements contained in this Indenture or the Guarantor fails Notes for 60 days after written notice to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions the Company from the Trustee or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount Holders of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity 25% in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal principal amount of the Notes then outstanding; and ;
(bviii) it shall have been indemnified failure by the Company or any of its Significant Subsidiaries to pay final judgments aggregating in excess of US$50 million (or its satisfaction. No Noteholder, Receiptholder equivalent in any other currency or Couponholder shall be entitled to proceed currencies) (excluding any amounts covered by insurance) rendered against the Issuer Company or any of the Guarantor unless the TrusteeCompany’s Significant Subsidiaries, having become bound so to proceedwhich judgement remains unpaid, fail to do so within undischarged or unstayed for a reasonable time and such failure is continuing. For the purposes period of Condition 9(a):more than 60 days;
(iix) “indebtedness for moneys borrowed“ means the Company or any present Significant Subsidiary shall commence a voluntary case or future indebtedness for other proceeding seeking liquidation, reorganization or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include other relief with respect to the Company or any entity which is such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a bank:trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or
(ax) indebtedness an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for moneys borrowed in respect a period of retail deposits held by such entity;60 consecutive days.
(b) indebtedness for moneys borrowed Notwithstanding anything to the contrary in respect this Indenture and without limitation of agreements the Holders’ rights in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each event of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only occurrence of any other Event of Default, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure to comply with Section 4.06(a) hereof will, for the first 180 days after the occurrence of such an Event of Default (which occurrence will be the 60th day after written notice is provided to the Company in accordance with an Event of Default pursuant to Section 6.01(a)(vii)), consist exclusively of the right to receive Additional Interest on the Notes at an annual rate equal to (x) 0.25% of the outstanding principal amount of the Notes for the first 90 days such Event of Default is continuing in such 180-day period and (y) 0.50% of the outstanding principal amount of the Notes for the remaining 90 days such Event of Default is continuing in such 180-day period. The Additional Interest payable pursuant to this Section 6.01(b) will be in addition to any Additional Interest that may accrue pursuant to Section 4.06; provided that, in no event will the rate of any such Additional Interest payable described in this Section 6.01(b), when taken together with that of Additional Interest payable as described under Section 4.06, exceed a total rate of 0.50% per annum. If the Company so elects, the Additional Interest payable under this Section 6.01(b) will be payable on all Notes outstanding from and including the date on which such Event of Default first occurs (which will be the 60th day after written notice is provided to the Company in accordance with an Event of Default pursuant to Section 6.01(a)(vii)) to, but excluding, the 181st day thereafter, or such earlier date on which such Event of Default has been cured or waived or ceases to exist. On the 181st day after such Event of Default, if such Event of Default has not been cured or waived prior to such 181st day, the Notes will be subject to acceleration as provided in Section 6.02. To the extent the Company elects to pay Additional Interest pursuant to this Section 6.01(b), it would will be (or payable in arrears on each Interest Payment Date following accrual in the case same manner as regular interest on the Notes. In the event the Company does not elect to pay the Additional Interest payable pursuant to this Section 6.01(b) following an Event of contingent obligationsDefault in accordance with this paragraph or the Company elected to make such payment but does not pay the Additional Interest when due, the indebtedness for moneys borrowed of Notes will immediately be subject to acceleration as provided in Section 6.02. In order to elect to pay the primary obligor would beAdditional Interest on the Notes payable pursuant to this Section 6.01(b) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with Section 4.06(a) in accordance with the immediately preceding paragraph, the Company must notify all Holders, the Trustee and Paying Agent of such election on or before the close of business on the date on which such Event of Default first occurs. Upon the failure to timely give all Holders, the Trustee and Paying Agent such notice, the Notes will be immediately subject to acceleration as provided in Section 6.02.
Appears in 1 contract
Samples: Indenture (WEIBO Corp)
Xxxxxx of Default. (a) Events Each of Default and Enforcement relating only to Senior Notesthe following is an “Event of Default”:
(i1) This Condition 9(a) shall apply only to Senior default for 30 days in the payment when due of interest on the Notes.;
(ii2) The Trustee default in the payment when due (at its discretion maymaturity, and upon redemption or otherwise) of the principal of, or premium (including the Applicable Premium), if so requested in writing any, on, the Notes;
(3) failure by the holders Issuer for 30 days after written notice from the Trustee or Holders of at least one-quarter not less than 30% in nominal aggregate principal amount of the Notes then outstanding (as defined in with a copy to the Trust DeedTrustee) to comply with Section 4.1 or if so directed Section 3.9;
(4) failure by an Extraordinary Resolution (as defined in the Trust Deed) Holdings or any of its Restricted Subsidiaries for 60 days after written notice of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing failure has been given to the Issuer that such event is, in its opinion, materially prejudicial to by the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other Trustee by written notice to the Issuer or the Guarantor Holders of at least 30% in aggregate principal amount the Notes by written notice to the Issuer with a copy to the Trustee then outstanding voting as a single class to comply with any of the other agreements in this Indenture or the Notes Collateral Documents;
(5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Holdings or any other formality required):
of its Restricted Subsidiaries (A) if default is made in or the payment of any principal, premium (if any) or interest due in respect of the Notes which is guaranteed by Holdings or any of them andits Restricted Subsidiaries), in whether such Indebtedness or Guarantee now exists, or is created after the case of interestIssue Date, if that default:
(i) is caused by a failure to pay principal of, or interest or premium (including the Applicable Premium), if any, on, such default continues for a period of 30 days; or
(B) if Indebtedness prior to the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation expiration of the Issuer or the Guarantor for the payment of any principal or premium or interest grace period provided in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee Indebtedness on the Issuer or the Guarantor date of such default (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amounta “Payment Default”); or
(Dii) ifresults in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million (or its foreign currency equivalent) or more;
(6) failure by Holdings or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $20.0 million (or its foreign currency equivalent), net of any amounts covered by independent third-party insurance and as to which such insurer has not disputed coverage, which judgments are not paid, discharged or stayed for a period of 60 consecutive days;
(7) except as permitted by this Indenture, any Note Guarantee of any Guarantor that is a Significant Subsidiary, or any group of Guarantors that, together, would constitute a Significant Subsidiary, is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, together, would constitute a Significant Subsidiary, or any Person acting on behalf of any such Guarantor or Guarantors, denies or disaffirms its obligations under its Note Guarantee;
(8) so long as the Notes Collateral Documents have not been otherwise than for terminated in accordance with their terms and the purposes Collateral as a whole has not been released from the Lien of the Notes Collateral Documents securing the Notes in accordance with the terms thereof, with respect to Collateral having a reconstruction Fair Market Value in excess of $20.0 million, (a) default by Holdings or amalgamation any of its Restricted Subsidiaries in the performance of the Notes Collateral Documents which adversely affects the enforceability, validity, perfection or priority of the Notes Collateral Agent’s Lien on terms previously approved the Collateral in any material respect, (b) repudiation or disaffirmation in writing by Holdings or any of its Restricted Subsidiaries of their respective obligations under the Trustee Notes Collateral Documents or (c) the determination in a judicial proceeding that the Notes Collateral Documents are unenforceable or invalid against the Issuer or any Guarantor that is (or any group of Restricted Subsidiaries that would constitute) a Significant Subsidiary for any reason except to the extent any such unenforceability or invalidity (A) caused by an Extraordinary Resolution the failure of the NoteholdersNotes Collateral Agent to maintain possession of certificates, promissory notes or instruments actually delivered to it representing securities pledged under the Notes Collateral Documents or (B) to the extent relating to Collateral consisting of real property, is covered by a title insurance policy with respect to such real property and such insurer has not denied coverage;
(9) Holdings or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of such Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order is made for relief against it in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors;
(v) consents to or acquiesces in the institution of a bankruptcy or an effective resolution insolvency proceeding against it; or
(vi) takes any comparable action under any foreign laws relating to insolvency; and
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is passed for relief against Holdings or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of such Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case,
(ii) appoints a custodian of Holdings or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of such Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all of the winding up property of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole any of its businessRestricted Subsidiaries that is a Significant Subsidiary or any group of such Restricted Subsidiaries that, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholderstaken together, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or would constitute a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.Significant Subsidiary,
(iii) At any time after orders the Notes winding up or liquidation of the Issuer or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided Restricted Subsidiaries that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness Significant Subsidiary or any group of such Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for moneys borrowed in respect of retail deposits held by such entity;60 consecutive days.
(b) indebtedness for moneys borrowed Notwithstanding clause (4) of Section 6.1(a) above or any other provision of this Indenture, any failure to perform, or breach of, any covenant or agreement pursuant to Section 3.10 shall not be a Default or an Event of Default until the 121st day after Holdings has received the notice referred to in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
clause (c4) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition first paragraph above (at which point, unless cured or waived, such failure to perform or breach shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case an Event of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may beDefault);.
Appears in 1 contract
Samples: Indenture (CPI Card Group Inc.)
Xxxxxx of Default. (a) Events Each of Default and Enforcement relating only to Senior Notesthe following is an “Event of Default:”
(i) This Condition 9(a) shall apply only to Senior default for 30 days in the payment when due of interest on, or with respect to, the Notes.;
(ii) The Trustee default in payment, when due at its discretion mayStated Maturity, and upon acceleration, redemption, required repurchase or otherwise, of the principal of, or premium, if so requested in writing any, on the Notes;
(iii) failure by the holders Company or any Restricted Subsidiary to comply with the provisions of Section 4.12, 4.18 or 5.01 hereof;
(iv) failure by the Company for 90 days after written notice thereof has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least one-quarter in nominal 25% of the aggregate principal amount of the Notes then outstanding outstanding, to comply with the provisions of Section 4.03 hereof;
(as defined in v) failure by the Trust Deed) Company or if so directed any Restricted Subsidiary for 60 days after written notice thereof has been given to the Company by an Extraordinary Resolution (as defined in the Trust Deed) Trustee, or to the Company and the Trustee by the Holders of at least 25% of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case aggregate principal amount of the happening of Notes outstanding to comply with any of its other covenants or agreements in this Indenture (other than those covenants or agreements in Sections 4.03, 4.12, 4.18 and 5.01 hereof);
(vi) default under any mortgage, hypothec, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for borrowed money by the events mentioned in sub-paragraphs (B)Company or any Restricted Subsidiary, (C)or the payment of which is guaranteed by the Company or any Restricted Subsidiary, (E)whether such Indebtedness or guarantee now exists, (F), (G) and (H) below, only if or is created after the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust DeedIssue Date, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):that default:
(A) if default is made in the payment of any principalcaused by a failure to pay principal of, premium (or interest or premium, if any) or interest , on such Indebtedness when due in respect at the final maturity of the Notes or any of them and, in the case of interest, such default continues for Indebtedness (a period of 30 days“Payment Default”); or
(B) if results in the Issuer acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the Guarantor fails maturity of which has been so accelerated, aggregates US$100.0 million or more;
(vii) failure by the Company or any Restricted Subsidiary to performpay final, observe non-appealable judgments aggregating in excess of US$100.0 million, which judgments are not paid, discharged or comply with stayed for a period of 60 days;
(viii) any obligationSubsidiary Guarantee of a Significant Subsidiary ceases, condition or provision binding on it under these Terms and Conditions or the Trust Deed Subsidiary Guarantees of any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary cease, to be in full force and effect (other than any obligation of in accordance with the Issuer or the Guarantor for the payment terms of any principal such Subsidiary Guarantee) or premium any Subsidiary Guarantor that is a Significant Subsidiary denies or interest disaffirms its obligations under its Subsidiary Guarantee, or a group of Subsidiary Guarantors that, when taken together, would constitute a Significant Subsidiary deny or disaffirm their obligations under their respective Subsidiary Guarantees;
(ix) the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or gives notice of intention to make a proposal under any Bankruptcy Law;
(B) consents to the entry of an order for relief against it in respect of the Notes) and such failure continues for more than 90 days (an involuntary case or such longer period as the Trustee may permit) following service by the Trustee on the Issuer consents to its dissolution or the Guarantor (as the case may be) of notice requiring the same to be remedied; orwinding up;
(C) if any indebtedness consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of it or for moneys borrowed (which indebtedness has an outstanding aggregate principal amount all or substantially all of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); orproperty;
(D) if, otherwise than makes a general assignment for the purposes benefit of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; orits creditors;
(E) if the Issuer or the Guarantor ceases or threatens admits in writing its inability to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, pay its debts as they fall due, become due or is deemed unable to pay otherwise admits its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolventinsolvency; or
(F) if seeks a stay of proceedings against it or proposes or gives notice or intention to propose a compromise, arrangement or reorganization of any of its debts or obligations under any Bankruptcy Law; and
(x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) an order is made for relief against the Issuer Company or the Guarantor under any applicable liquidationof its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, insolvencywhen taken together, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointedwould constitute a Significant Subsidiary, in relation to the Issuer an involuntary case; or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and
(B) in any case is not discharged within 60 days; or
(G) if the Issuer appoints a receiver, interim receiver, receiver and manager, liquidator, trustee or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 custodian of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes Company or any of them shall have become due and repayable and have not been repaidits Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, the Trustee maywhen taken together, at its discretion and without further noticewould constitute a Significant Subsidiary, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions or for all or substantially all of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution property of the Noteholders Company or so requested in writing by any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary;
(C) orders the holders of at least one-quarter in nominal amount liquidation of the Notes then outstandingCompany or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary; and or
(bD) it shall have been indemnified to orders the presentation of any plan or arrangement, compromise or reorganization of the Company or any of its satisfaction. No NoteholderSignificant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trusteewhen taken together, having become bound so to proceed, fail to do so within would constitute a reasonable time Significant Subsidiary; and such failure is continuingorder or decree remains unstayed and in effect for 60 consecutive days. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);
Appears in 1 contract
Samples: Indenture (Videotron Ltee)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) Any one or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any more of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank” hereunder:
(a) indebtedness default in the payment when due of all or any part of the principal of any Loan (whether at the stated maturity thereof or at any other time provided for moneys borrowed in respect this Agreement); or default for a period of retail deposits held by such entitythree (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) indebtedness for moneys borrowed in respect of agreements default in the ordinary course observance or performance of business any covenant set forth in Sections 8.1 (only with respect to purchase the first sentence thereof), 8.5 (for a period of five (5) days), 8.7, 8.8, 8.9, 8.10, 8.20, 8.21 (if not replaced with another Eligible Property or repurchase securities Eligible Properties in accordance with Section 7.3 hereof within ten (10) Business Days after the period of notice required by Section 7.3), 8.23 or loans; and8.25 hereof;
(c) contingent liabilities incurred default in the ordinary course observance or performance of banking business any other provision hereof or of any other Loan Document which is not remedied within thirty (including banker’s acceptances30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of the Borrower or (ii) written notice thereof is given to the Borrower by the Administrative Agent; provided, trade acceptanceshowever, letters if such a default is susceptible of credit and finance acceptance), cure but cannot reasonably be cured within such thirty (30) day period and provided further that each the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such default, provided such additional period shall not exceed sixty (60) days;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the foregoing items date of the issuance or making or deemed making thereof; provided, that such breach of a representation or warranty shall not constitute an Event of Default if within ten (10) days of the Borrower’s knowledge of such breach, the Borrower takes such action as may be required to make such representation or warranty to be true in this definition all material respects as made and it did not have a Material Adverse Effect;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (and the related grace period, if any, shall have expired), or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void except as expressly permitted by the terms hereof;
(f) default and expiration of any cure periods related thereto shall occur under (x) any Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $10,000,000 or (y) any recourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $1,000,000, or a default and expiration of any cure periods related thereto, shall occur under any indenture, agreement or other instrument under which such Indebtedness for Borrowed Money may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be deemed to constitute indebtedness for moneys borrowed only entered or filed against the Borrower or any Subsidiary, or against any of its Property, in an aggregate amount in excess of $5,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or in the case of contingent obligations, the indebtedness any Material Subsidiary shall (i) have entered involuntarily against it an order for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the case may be)benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it within sixty (60) days, (vi) take any board of director or shareholder action (including the convening of a meeting) in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 9.1(k) hereof;
(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Subsidiary, or any substantial part of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted against the Borrower or any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(l) the Common Stock of Parent fails to be duly listed on the New York Stock Exchange, the NYSE American or The NASDAQ Stock Market; or
(m) any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than in accordance with the terms hereof or thereof, or satisfaction in full or all the Obligations, is revoked, terminated, cancelled or rescinded, without the prior written approval of the Administrative Agent; or the Borrower or any Guarantor commences any legal proceeding at law or in equity to contest, or make unenforceable, cancel, revoke or rescind any of the Loan Documents, or any court or any other Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Xxxxxx of Default. (a) Events An “Event of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) Default” shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, exist if any of the following conditions or events (“Events of Default“) shall have occurred occur and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):continuing:
(Aa) if default is made the Company defaults in the payment of any principalprincipal or Make-Whole Amount, premium (if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note, any fee due under any Finance Document or any other amount payable under any Finance Document for more than three days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term contained in Section 7.1, Section 7.2, Section 7.3, Section 9.2, Section 9.5, Section 9.8, Section 9.10, Section 9.13, Section 9.15, Section 10 or any Incorporated Provision that is a financial covenant, negative covenant or event of default; or
(d) any Obligor defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11(a), (b) and (c)) or interest due in respect of the Notes or any of them and, in the case of interest, other Finance Document and such default continues for a period of is not remedied within 30 days; or
(Be) if the Issuer any representation or the Guarantor fails to perform, observe warranty made in writing by or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment behalf of any principal Obligor or premium by any officer of any Obligor in this Agreement, any other Finance Document or interest any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (date as the case may be) of notice requiring the same to be remediedwhich made; or
(Cf) if (i) the Company or any indebtedness for moneys borrowed Subsidiary (which indebtedness has A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any (x) Indebtedness or Guaranty (other than Indebtedness hereunder or other obligations having an outstanding aggregate principal amount of at least the Specified Amount(including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Issuer Threshold Amount (any such Indebtedness or Guaranty, “Material Indebtedness”), or (y) Material Rental Obligation, (B) fails to observe or perform any other agreement or condition relating to any such Material Indebtedness, or Material Rental Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to (x) cause, or to permit the holder or holders of such Material Indebtedness or the Guarantor is not paid on its due date beneficiary or beneficiaries of such Material Rental Obligation (or by the expiry a trustee or agent on behalf of any applicable grace period as originally providedsuch holder or holders or beneficiary or beneficiaries) to cause such Material Indebtedness or becomes Material Rental Obligation to be demanded or to become due and payable or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity by reason maturity, to become payable or cash collateral in respect thereof to be demanded or (y) cause or permit the lease with respect to any Material Rental Obligation of the Company or any of its Subsidiaries to be terminated for default of the Company or a Subsidiary prior to its scheduled expiration date; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract or, if not so defined, any similar event under such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract or, if not so defined, any guarantee of similar term in such Swap Contract) or indemnity (B) any Termination Event (as so defined or, if not so defined, any similar event under such Swap Contract) under such Swap Contract as to which the Company or any Subsidiary is an Affected Party (as defined in respect of such Swap Contract or, if not so defined, any payment similar term in respect of indebtedness for moneys borrowed of any third party given such Swap Contract) and, in either event, the Swap Termination Value owed by the Issuer Company or such Subsidiary as a result thereof is greater than the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Threshold Amount); or
(Dg) if, otherwise than for (x) the purposes of a reconstruction Company or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order any Subsidiary (i) is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable togenerally not paying, or admits in writing its inability to, to pay, its debts as they fall become due, (ii) files, or is deemed unable consents by answer or otherwise to pay its debts pursuant the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the purposes benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any applicable lawof the foregoing or (y) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of the Company or any Subsidiary and is not released, vacated or is adjudicated fully bonded within 30 days after its issue or found bankrupt or insolventlevy; or
(Fh) if (A) a court or other Governmental Authority of competent jurisdiction enters an order is made appointing, without consent by the Company or relevant Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any of its Subsidiaries, or any such petition shall be filed against the Issuer Company or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them its Subsidiaries and (B) in any case is such petition shall not discharged be dismissed within 60 days; or
(Gi) any event occurs with respect to the Company or any Subsidiary which under the laws of any jurisdiction is analogous to any of the events described in Section 11(g) or Section 11(h), provided that the applicable grace period, if any, which shall apply shall be the Issuer one applicable to the relevant proceeding which most closely corresponds to the proceeding described in Section 11(g) or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar lawsSection 11(h); or
(Hj) there is entered against the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes Company or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
Subsidiary (i) “indebtedness one or more final judgments or orders for moneys borrowed“ means any present the payment of money in an aggregate amount (as to all such judgments or future indebtedness for or in respect of moneys borrowed or raised orders) exceeding the Threshold Amount, provided that indebtedness for moneys borrowed shall not include with respect to any entity which is such judgments and orders that are covered by insurance (after payment of a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities deducible incurred in the ordinary course of banking business business) or fully indemnifiable by a third party shall not be taken into account, or (including banker’s acceptancesii) any one or more non-monetary final judgments that have, trade acceptancesor could reasonably be expected to have, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (individually or in the case aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of contingent obligations45 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(k) (i) an ERISA Event occurs which has resulted or could reasonably be expected to result in liability of the Company or any ERISA Affiliate in an aggregate amount in excess of the Threshold Amount, (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount, (iii) the Company or any Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or wound up and such failure, termination or winding up could reasonably be expected to have a Material Adverse Effect, (iv) there is any “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with Title IV of ERISA that, either individually or together with any other event or events described in this Section 11(k), could reasonably be expected to have a Material Adverse Effect, (v) the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S. Plans allocable to such liabilities and such event, either individually or together with any other event or events described in this Section 11(k), could reasonably be expected to have a Material Adverse Effect, (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder and such event, either individually or together with any other event or events described in this Section 11(k), could reasonably be expected to have a Material Adverse Effect, or (vii) the Company or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans and such event, either individually or together with any other event or events described in this Section 11(k), could reasonably be expected to have a Material Adverse Effect. As used in this Section 11(k), the indebtedness term “employee welfare benefit plan” shall have the meaning assigned to such term in section 3 of ERISA; or
(l) any provision of any Finance Document, at any time after its execution and delivery and for moneys borrowed any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Note Obligations, ceases to be in full force and effect; or any Obligor or any other Person contests in any manner the validity or enforceability of any provision of any Finance Document; or any Obligor denies that it has any or further liability or obligation under any Finance Document, or purports to revoke, terminate or rescind any provision of any Finance Document or it becomes unlawful for an Obligor to perform any material obligation thereunder; or
(m) there occurs any Change of Control; or
(n) any of the primary obligor would befollowing shall occur: (i) required the Liens created under the Finance Documents shall at any time cease to constitute valid and perfected Liens on any Collateral which is intended to be reflected covered thereby other than with the consent, in writing, of the holders of the Notes or with respect to any asset that is the subject of a Disposition that is permitted under this Agreement and the other Finance Documents; (ii) any Finance Document shall for whatever reason be terminated, or shall cease to be in full force and effect other than with the consent, in writing, of the holders of the Notes or otherwise in accordance with its terms; or (iii) the enforceability of any Finance Document shall be contested by the Company or any of its Subsidiaries; or
(o) a notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by the Company or any of its Subsidiaries; or
(p) the Company or any of its Subsidiaries shall, directly or indirectly, disavow or contest in any manner (i) the effectiveness, validity or enforceability of any of the intercreditor, subordination, standstill, payover and insolvency related provisions of the Intercreditor Agreement (the “Intercreditor Provisions”), (ii) that the Intercreditor Provisions exist for the benefit of the Creditors or (iii) that all payments of principal of or premium and interest on the Obligations, or realized from the liquidation of any property of any Obligor, shall be subject to any of the Intercreditor Provisions; or
(q) there occurs any Event of Default as a liability by generally accepted accounting principles such term is defined in England and Wales the Bank Credit Agreement (or any similar term or phrase under the United States (as the case may beBank Credit Agreement);.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Allient Inc)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the In case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (each, an “Events Event of Default“”):
(a) shall have occurred and be continuing (provided that, in the case of the occurrence of any event representation or events set forth in sub-paragraphs (D) warranty made or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without deemed made by any declaration or other notice to the Issuer or the Guarantor Borrower or any other formality required):Loan Party herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect when so made or deemed made;
(Ab) if default is shall be made in the payment of any principalprincipal of any Loan or the reimbursement with respect to any L/C Disbursement when and as the same shall become due and payable, premium whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(if anyc) default shall be made in the payment of any interest on any Loan or in the payment of any Fee or any other amount (other than an amount referred to in paragraph (b) above) due under any Loan Document, when and as the same shall become due and payable; provided, however, that no Event of Default shall occur for purposes of this Section 8.01 until the expiry of three Business Days following the date on which such payment is due;
(d) default shall be made in the due observance or performance by any Borrower of any covenant, condition or agreement contained in Sections 2.05(c), 5.01(a), 5.05(a) or interest 5.08 or in Article VI; provided, that, any breach of Section 6.16 during the Deferral Period shall not constitute an Event of Default under the Term A Facility or the Revolving Facility and the Term A Loans and Revolving Facility Loans may not be accelerated as a result thereof unless there are Term A-1 Loans and Deferred Term A Loans outstanding that have been accelerated by the Required Deferring Lenders as a result of such breach;
(e) default shall be made in the due observance or performance by any Borrower or any other Loan Party of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (b), (c) and (d) above) and such default shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Company;
(i) any event or condition occurs that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or (ii) the Company or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that this clause (f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Notes Company or any of them andthe Material Subsidiaries, or of a substantial part of the property or assets of the Company or any Material Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of the Material Subsidiaries or for a substantial part of the property or assets of the Company or any of the Material Subsidiaries or (iii) the winding-up or liquidation of the Company or any Material Subsidiary (except, in the case of interestany Material Subsidiary, in a transaction permitted by Section 6.05); and such default continues proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (1) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (2) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) above, (3) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of the Material Subsidiaries or for a substantial part of the property or assets of the Company or any Material Subsidiary, (4) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (5) make a general assignment for the benefit of creditors or (6) become unable or admit in writing its inability or fail generally to pay its debts as they become due;
(j) the failure by the Company or any Material Subsidiary to pay one or more final judgments aggregating in excess of $[*] (to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 30 45 consecutive days; or, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Company or any Material Subsidiary to enforce any such judgment;
(Bk) if (i) a Reportable Event or Reportable Events shall have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect to any Plan or Multiemployer Plan, (iii) the Issuer PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (iv) the Guarantor fails to perform, observe Company or comply with any obligation, condition Subsidiary or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service ERISA Affiliate shall have been notified by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes sponsor of a reconstruction or amalgamation on terms previously approved Multiemployer Plan that such Multiemployer Plan is in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, reorganization or is unable tobeing terminated, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Title IV of ERISA, (v) the Company or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 736 406 of ERISA or Section 4975 of the Companies Act 1985Code) directly involving any Plan or indirectly(vi) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;
(i) any Loan Document shall for any reason be asserted in writing by any Borrower or any Subsidiary Guarantor not to be a legal, valid and binding obligation of any party thereto, (ii) any security interest purported to be created by any Security Document and which extends to assets that are not immaterial to the Company and the Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by any Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application thereof, or from the failure of the Guarantor.
Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file Uniform Commercial Code continuation statements or take the actions required to be taken by the Collateral Agent as described on Schedule 3.04 and except to the extent that such loss is covered by a lender’s title insurance policy and the Collateral Agent shall be reasonably satisfied with the credit of such insurer, or (iii) At the Guarantees pursuant to the Security Documents by any Borrower or any other Loan Party of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by any Borrower or any other Loan Party not to be in effect or not to be legal, valid and binding obligations;
(i) so long as any Pari Passu Senior Secured Notes are outstanding, the First Lien Intercreditor Agreement, and (ii) so long as any other Senior Secured Notes secured on a junior basis to the Liens on the Collateral securing the Obligations are outstanding and are subject to the Second Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement shall, in whole or in part, cease to be effective or cease to be legally valid, binding and enforceable against any party thereto (or against any person on whose behalf any such party makes any covenants or agreements therein), or otherwise not be effective to create the rights and obligations purported to be created thereunder, unless the same results directly from the action or inaction of the Administrative Agent; then, and in every such event (other than (x) an event with respect to the Borrowers described in paragraph (h) or (i) above and (y) an event described in clause (d) above arising with respect to a failure to comply with Section 6.16 during the Deferral Period, unless the conditions of the first proviso contained in clause (d) above have been satisfied), and at any time after thereafter during the Notes continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Company, take any or any all of them shall have become the following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and repayable payable in whole or in part, whereupon the principal of the Loans so declared to be due and have not been repaidpayable, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest thereon and to enforce the provisions any unpaid accrued Fees and all other liabilities of the Trust DeedBorrowers accrued hereunder and under any other Loan Document, but it shall not be bound become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in any other Loan Document to institute any such proceedings unless the contrary notwithstanding and (aiii) it shall if the Loans have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstandingdeclared due and payable pursuant to clause (ii) above, demand cash collateral pursuant to Section 2.05(j); and in any event with respect to the Borrowers described in paragraph (bh) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed above, the Commitments shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in automatically terminate, the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each principal of the foregoing items in this definition Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to constitute indebtedness have made a demand for moneys borrowed only cash collateral to the full extent it would be (permitted under Section 2.05(j), without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding. In the case of contingent obligationsan Event of Default under clause (d) above arising with respect to a failure to comply with Section 6.16 during the Deferral Period and at any time thereafter during the continuance of such event, the indebtedness for moneys borrowed Administrative Agent, at the request of the primary obligor would beRequired Deferring Lenders, shall, by notice to the Company, take any or all of the following actions, at the same or different times: (i) required terminate forthwith the Term A-1 Loan Commitments and Deferred Term A Loan Commitments, (ii) declare the Term A-1 Loans and Deferred Term A Loans then outstanding to be reflected as a liability forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees with respect thereto, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by generally accepted accounting principles the Borrowers, anything contained herein or in England and Wales or any other Loan Document to the United States (as the case may be);contrary notwithstanding.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Xxxxxx of Default. (a) Events Each of Default and Enforcement relating only to Senior Notesthe following constitutes an "EVENT OF DEFAULT":
(i) This Condition 9(a) shall apply only to Senior Notes.default for 30 days in the payment when due of interest on the Securities;
(ii) The Trustee default in payment when due of the principal of or premium, if any, on the Securities at its discretion may, and if so requested in writing maturity or otherwise;
(iii) failure by the holders Company to comply with the provisions of at least one-quarter Section 3.07;
(iv) failure by the Company to comply with any other covenant or agreement in nominal the Indenture, the Securities or the Escrow Agreement for the period and after the notice specified below;
(v) any default that occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Significant Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Significant Subsidiaries), whether such Indebtedness or Guarantee exists on the date hereof or is created after the date hereof, which default (a) constitutes a Payment Default or (b) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption AmountIndebtedness, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence principal amount of any event other such Indebtedness under which there has been a Payment Default or events set forth in sub-paragraphs (D) that has been so accelerated, aggregates $25.0 million or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):more;
(Avi) if default is made in failure by the payment of any principal, premium (if any) or interest due in respect of the Notes Company or any of them and, its Significant Subsidiaries to pay a final judgment or final judgments aggregating in excess of $25.0 million entered by a court or courts of competent jurisdiction against the case Company or any of interest, its Significant Subsidiaries if such default continues final judgment or judgments remain unpaid or undischarged for a period (during which execution shall not be effectively stayed) of 30 days; or60 days after their entry;
(Bvii) if the Issuer Company or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts Significant Subsidiary thereof pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bankBankruptcy Law:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;commences a voluntary case,
(b) indebtedness consents to the entry of an order for moneys borrowed relief against it in respect an involuntary case in which it is the debtor,
(c) consents to the appointment of agreements a Custodian of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) admits in writing its inability generally to pay its debts as the ordinary course same become due;
(viii) a court of business to purchase competent jurisdiction enters an order or repurchase securities decree under any Bankruptcy Law that:
(a) is for relief against the Company or loansany Significant Subsidiary thereof in an involuntary case in which it is the debtor,
(b) appoints a Custodian of the Company or any Significant Subsidiary thereof or for all or substantially all of the property of the Company or any Significant Subsidiary thereof, or
(c) orders the liquidation of the Company or any Significant Subsidiary thereof, and the order or decree remains unstayed and in effect for 60 days; and
(cix) contingent liabilities incurred in failure by the ordinary course Company to make any exchange of banking business Vencor Common Shares (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition or such other securities or property or cash as shall be deemed added to constitute indebtedness such Vencor Common Shares or as such Vencor Common Shares shall have been changed into as provided in Article 10 hereof) for moneys borrowed only any Security at the Exchange Rate and upon the terms set forth in Article 10 hereof subject to the extent it would be (or Company's right to pay cash in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required lieu thereof pursuant to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);Section 10.13.
Appears in 1 contract
Samples: Indenture (Tenet Healthcare Corp)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any Each of the following events (shall be an “Events Event of Default“” with respect to the Notes:
(a) shall have occurred and be continuing (provided that, default in the case any payment of the occurrence of interest on any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically Note when due and payable without any declaration or other notice to payable, and the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or;
(Bb) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for default in the payment of principal of any principal Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required repurchase, upon declaration of acceleration or premium or interest otherwise;
(c) failure by the Company to comply with its obligation to convert the Notes in respect accordance with this Indenture upon exercise of the Notes) a Holder’s conversion right and such failure continues for more than 90 five Business Days;
(d) failure by the Company to issue (i) a Fundamental Change Company Notice in accordance with Section 15.02(c) or notice of a Make-Whole Fundamental Change in accordance with Section 14.03(b), in either case when due and such failure continues for two Business Days, or (ii) notice of a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii) when due and such failure continues for five Business Days;
(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company for 60 days (or such longer period as after written notice from the Trustee may permit) following service or the Holders of at least 25% in principal amount of the Notes then outstanding has been received by the Trustee on Company to comply with any of its other agreements contained in the Issuer Notes or the Guarantor (as the case may be) of notice requiring the same to be remedied; orthis Indenture;
(Cg) if default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for moneys money borrowed in excess of $75,000,000 (which indebtedness has an outstanding or its foreign currency equivalent) in the aggregate principal amount of at least the Specified Amount) of the Issuer Company and/or any such Significant Subsidiary, whether such indebtedness now exists or the Guarantor is not paid on its due date shall hereafter be created (i) resulting in such indebtedness becoming or by the expiry of any applicable grace period as originally provided) or becomes being declared due and payable prior to its stated maturity by reason of default date or if any guarantee of or indemnity in respect (ii) constituting a failure to pay the principal of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured such debt when due and called payable (after the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, and in the cases of clauses (except where the aggregate liability under any i) and (ii), such guarantee acceleration shall not have been rescinded or indemnity does annulled or such failure to pay or default shall not equal have been cured or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholderswaived, or the Issuer such indebtedness is not paid or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor ordischarged, as the case may be, in relation within 30 days after written notice to the whole Company by the Trustee or substantially to the whole Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding in accordance with this Indenture;
(h) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary of its respective debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the undertaking Company or assets such Significant Subsidiary or any substantial part of any of themits respective property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an encumbrancer takes possession of the whole involuntary case or substantially the whole of the undertaking or assets of any of themother proceeding commenced against it, or shall make a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against general assignment for the whole or substantially the whole benefit of the undertaking or assets of any of them and (B) in any case is not discharged within 60 dayscreditors; or
(Gi) if an involuntary case or other proceeding shall be commenced against the Issuer Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Guarantor initiates Company or consents to judicial proceedings relating to itself such Significant Subsidiary of its respective debts under any applicable liquidationbankruptcy, insolvency, composition, reorganisation insolvency or other similar laws; or
(H) law now or hereafter in effect or seeking the Issuer ceases to be appointment of a subsidiary (within the meaning of Section 736 trustee, receiver, liquidator, custodian or other similar official of the Companies Act 1985) directly Company or indirectly, of the Guarantor.
(iii) At any time after the Notes such Significant Subsidiary or any substantial part of them shall have become due and repayable and have not been repaidits respective property, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes involuntary case or other proceeding shall remain undismissed and unstayed for a period of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);30 consecutive days.
Appears in 1 contract
Samples: Indenture (Axon Enterprise, Inc.)
Xxxxxx of Default. Each of the following events or conditions shall be an “Event of Default”:
(a) Events of Default and Enforcement relating only any failure by the Borrower to Senior Notes
pay when due (i) This Condition 9(a) shall apply only to Senior Notes.
any amount of principal owing under a Loan Document, (ii) The Trustee at its discretion may, and if so requested in writing any amount of interest owing under a Loan Document within five (5) Business Days of the due date thereof or (iii) any fee or other amount (other than principal or interest) owing under a Loan Document within thirty (30) days of the earlier of the date the Borrower receives (x) the invoice or (y) a written demand from any Lender or the Administrative Agent;
(b) any failure by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject Borrower to being indemnified to comply with its satisfactionobligations under Sections 7.01(a), (bute), (g), (i) or, (l) or Section 7.02;
(c) any representation or warranty made by the Borrower in any Loan Document or in connection herewith, or any statement made in any certificate, report or financial statement furnished by the Borrower, has been demonstrated to have been false or misleading in any material respect when made or deemed made, provided that such false or misleading statement shall not constitute an Event of Default if such condition or circumstance is (i) subject to cure and (ii) the facts or conditions giving rise to such misrepresentation or misstatement are cured in such a manner as to eliminate such misrepresentation or misstatement within thirty (30) days after the Borrower’s having knowledge thereof;
(d) any failure by the Borrower to perform or comply with any of the covenants or provisions set forth in a Loan Document (exclusive of any events specified as an Event of Default in any other subsection of this Section 8.01), which failure remains uncured for a period of thirty (30) days, or in the case of Section 7.01(h) (solely to the happening of extent it relates to compliance with Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions) five (5) Business Days, after the Administrative Agent or any Lender has given written notice thereof to the Borrower;
(e) any event specified in any agreement or instrument under which there may be issued, or by which there may be secured or evidenced, External Indebtedness of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor Borrower or any other formality required):
(A) if default is made Material Subsidiary thereof shall occur and shall result in the payment of any principal, premium (if any) or interest due such External Indebtedness in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount in excess of at least the Specified Amountfifty million U.S. Dollars (U.S.$50,000,000) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally providedits equivalent) becoming or becomes being declared due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when date on which it would otherwise have become due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); orpayable;
(Df) if, otherwise than for (A)(i) the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens Borrower shall be unable generally to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, pay its debts as they fall due, due or is deemed unable shall admit in writing its inability to pay its debts pursuant as they fall due or shall become insolvent; (ii) the Borrower shall apply for or consent to the appointment of any liquidator, receiver, trustee, síndico, conciliador or administrator for all or a substantial part of its business, properties, assets, or revenues; or (iii) a liquidator, receiver, trustee, or administrator shall be appointed for the purposes Borrower and such appointment shall continue undismissed, undischarged or unstayed for a period of ninety (90) days; (B) the Borrower shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding; (C) a bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding shall be instituted against the Borrower and such proceeding shall remain undismissed, undischarged or unstayed for a period of ninety (90) days; (D) the Borrower shall take any action seeking to take advantage of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidationother law relating to its bankruptcy, insolvency, liquidation, termination, dissolution, winding up, or composition, reorganisation or other readjustment of debts; or (E) the Borrower shall take any corporate or similar laws, or an order is made action for the appointment purpose of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole effecting any of the undertaking foregoing; provided that for as long as Colombia's applicable insolvency laws provide for restrictions on or assets of any of them, or an encumbrancer takes possession sanctions associated with the ability of the whole or substantially the whole of the undertaking or assets of any of themLenders, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, to exercise the right to declare an Event of Default under this Section 8.01(f), the Lenders and Borrower hereto agree that nothing in this Section 8.01(f) shall (A) prevent the commencement of any restructuring proceeding in Colombia, whether voluntary or involuntary, in respect of the Guarantor.Borrower, (B) prohibit the Borrower from entering into a restructuring proceeding in Colombia, or (C) cause an unfavorable effect (efecto desfavorable) upon the Borrower;
(iiig) At any time after final, non-appealable judgment against the Notes Borrower or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless Material Subsidiary (ai) it shall have been so directed entered on a claim not covered by insurance in an Extraordinary Resolution aggregate amount of fifty million U.S. Dollars (U.S. $50,000,000) (or its equivalent in another currency) or more, and (ii) such judgment has not been removed, vacated, discharged or satisfied for a period of sixty (60) days from the date of such final judgment;
(h) any Governmental Authority shall have (i) condemned, seized or otherwise expropriated (either through a single act or a series of acts) all or substantially all of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount property of the Notes then outstanding; and Borrower or (bii) it shall have been indemnified taken any action that materially curtails the authority of the Borrower to conduct its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):business;
(i) “indebtedness for moneys borrowed“ means any present authorization, approval, Governmental Approval, consent, license, exemption, filing, registration, notarization or future indebtedness for other requirement of any Governmental Authority necessary to enable the Borrower to comply with its obligations under any Loan Document shall have been revoked, rescinded, suspended, held invalid or otherwise limited in respect of moneys borrowed or raised provided effect in a manner that indebtedness for moneys borrowed shall not include with respect could reasonably be expected to any entity which is have a bank:Material Adverse Effect;
(aj) indebtedness for moneys borrowed any Loan Document ceases to be in respect full force and effect or is declared in a final, non-appealable judgment to be unenforceable against the Borrower (in each case, other than as a result of retail deposits held any action or inaction on the part of the Administrative Agent or any Lender), the validity or enforceability of any Loan Document at any time is challenged by such entity;the Borrower; or the Borrower repudiates any Loan Document, or does or causes to be done any act or thing evidencing an intention to repudiate any Loan Document; or
(bk) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business Colombia shall cease to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit own and finance acceptance), and provided further that each control at least 50.1% of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed outstanding economic and voting ownership interests of the primary obligor would beBorrower or any successor entity permitted under the terms hereof and the Borrower shall fail to prepay the Loan within the thirty (30) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);days following that event.
Appears in 1 contract
Samples: Loan Agreement (Ecopetrol S.A.)
Xxxxxx of Default. Each of the following events or conditions shall be an “Event of Default”:
(a) Events of Default and Enforcement relating only any failure by the Borrower to Senior Notes
pay when due (i) This Condition 9(a) shall apply only to Senior Notes.
any amount of principal owing under a Loan Document, (ii) The Trustee at its discretion may, and if so requested in writing any amount of interest owing under a Loan Document within five (5) Business Days of the due date thereof or (iii) any fee or other amount (other than principal or interest) owing under a Loan Document within thirty(30) days of the earlier of the date the Borrower receives (x) the invoice or (y) a written demand from any Lender or the Administrative Agent;
(b) any failure by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject Borrower to being indemnified to comply with its satisfactionobligations under Sections 7.01(a), (bute), (g), (i) or, (l) or Section 7.02;
(c) any representation or warranty made by the Borrower in any Loan Document or in connection herewith, or any statement made in any certificate, report or financial statement furnished by the Borrower, has been demonstrated to have been false or misleading in any material respect when made or deemed made, provided that such false or misleading statement shall not constitute an Event of Default if such condition or circumstance is (i) subject to cure and (ii) the facts or conditions giving rise to such misrepresentation or misstatement are cured in such a manner as to eliminate such misrepresentation or misstatement within thirty (30) days after the Borrower’s having knowledge thereof;
(d) any failure by the Borrower to perform or comply with any of the covenants or provisions set forth in a Loan Document (exclusive of any events specified as an Event of Default in any other subsection of this Section 8.01), which failure remains uncured for a period of thirty (30) days, or in the case of Section 7.01(h) (solely to the happening of extent it relates to compliance with Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions) five (5) Business Days, after the Administrative Agent or any Lender has given written notice thereof to the Borrower;
(e) any event specified in any agreement or instrument under which there may be issued, or by which there may be secured or evidenced, External Indebtedness of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor Borrower or any other formality required):
(A) if default is made Material Subsidiary thereof shall occur and shall result in the payment of any principal, premium (if any) or interest due such External Indebtedness in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount in excess of at least the Specified Amountfifty million U.S. Dollars (U.S. $50,000,000) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally providedits equivalent) becoming or becomes being declared due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when date on which it would otherwise have become due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); orpayable;
(Di) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens Borrower shall be unable generally to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, pay its debts as they fall due, due or is deemed unable shall admit in writing its inability to pay its debts pursuant as they fall due or shall become insolvent; (ii) the Borrower shall apply for or consent to the appointment of any liquidator, receiver, trustee, síndico, conciliador or administrator for all or a substantial part of its business, properties, assets, or revenues; or (iii) a liquidator, receiver, trustee, or administrator shall be appointed for the purposes Borrower and such appointment shall continue undismissed, undischarged or unstayed for a period of ninety (90) days; (B) the Borrower shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding; (C) a bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding shall be instituted against the Borrower and such proceeding shall remain undismissed, undischarged or unstayed for a period of ninety (90) days; (D) the Borrower shall take any action seeking to take advantage of any applicable lawother law relating to its bankruptcy, insolvency, liquidation, termination, dissolution, winding up, or composition, or readjustment of debts; or (E) the Borrower shall take any corporate or similar action for the purpose of effecting any of the foregoing; provided that for as long as Colombia’s applicable insolvency laws provide for restrictions on or sanctions associated with the ability of the Lenders, directly or indirectly, to exercise the right to declare an Event of Default under this Section 8.01(f), the Lenders and Borrower hereto agree that nothing in this Section 8.01(f) shall (A) prevent the commencement of any restructuring proceeding in Colombia, whether voluntary or involuntary, in respect of the Borrower, (B) prohibit the Borrower from entering into a restructuring proceeding in Colombia, or (C) cause an unfavorable effect (efecto desfavorable) upon the Borrower;
(g) any final, non-appealable judgment against the Borrower or any Material Subsidiary (i) shall have been entered on a claim not covered by insurance in an aggregate amount of fifty million U.S. Dollars (U.S. $50,000,000) (or its equivalent in another currency) or more, and (ii) such judgment has not been removed, vacated, discharged or satisfied for a period of sixty (60) days from the date of such final judgment;
(h) any Governmental Authority shall have (i) condemned, seized or otherwise expropriated (either through a single act or a series of acts) all or substantially all of the property of the Borrower or (ii) taken any action that materially curtails the authority of the Borrower to conduct its business;
(i) any authorization, approval, Governmental Approval, consent, license, exemption, filing, registration, notarization or other requirement of any Governmental Authority necessary to enable the Borrower to comply with its obligations under any Loan Document shall have been revoked, rescinded, suspended, held invalid or otherwise limited in effect in a manner that could reasonably be expected to have a Material Adverse Effect;
(j) any Loan Document ceases to be in full force and effect or is adjudicated declared in a final, non-appealable judgment to be unenforceable against the Borrower (in each case, other than as a result of any action or found bankrupt inaction on the part of the Administrative Agent or insolventany Lender), the validity or enforceability of any Loan Document at any time is challenged by the Borrower; or the Borrower repudiates any Loan Document, or does or causes to be done any act or thing evidencing an intention to repudiate any Loan Document; or
(Fk) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation Colombia shall cease to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole own and control at least 50.1% of the undertaking or assets of any of them, or an encumbrancer takes possession outstanding economic and voting ownership interests of the whole Borrower or substantially any successor entity permitted under the whole of terms hereof and the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against Borrower shall fail to prepay the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (Loan within the meaning of Section 736 of the Companies Act 1985thirty (30) directly or indirectly, of the Guarantordays following that event.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);
Appears in 1 contract
Samples: Loan Agreement (Ecopetrol S.A.)
Xxxxxx of Default. Any one or more of the following shall constitute an Event of Default:
(a) Events default by the Borrower in the payment of Default and Enforcement relating only to Senior Notesthe principal amount of any Loan, any Reimbursement Obligation or any interest thereon or any fees payable hereunder within three (3) Business Days of the date such payment is due;
(b) default by the Borrower in the observance or performance of any covenant set forth in Sections 6.7(d), 6.11(a), 6.12 or 6.17;
(c) default or event of default by the Borrower or any of its Subsidiaries in the observance or performance of any provision hereof or of any other Credit Document not mentioned in (a) or (b) above which is not remedied within thirty (30) days after the earlier of (i) This Condition 9(a) shall apply only such default or event of default first becoming known to Senior Notes.
any officer of the Borrower, or (ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that Borrower by the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case Agent of the occurrence of such default or event of default;
(d) any event representation or events set forth warranty or other written statement made or deemed made herein, in sub-paragraphs (D) any other Credit Document or (F) below in any financial or other report or document furnished in compliance herewith or therewith by the Borrower or any of its Subsidiaries proves untrue in any material respect as of the Guarantordate of the issuance or making, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer deemed issuance or the Guarantor or any other formality required):making thereof;
(Ae) if default is made occurs in the payment of when due (after any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may beapplicable grace period) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has Debt in an outstanding aggregate principal amount of at least the Specified Amount) $5,000,000 or more of the Issuer Borrower or any of its Subsidiaries, or the Guarantor is not paid on its due date occurrence of any other default (or by the expiry of after any applicable grace period as originally providedperiod) which would permit the holder or becomes due and payable prior beneficiary of such Debt, or a trustee therefor, to its stated cause the acceleration of the maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect such Debt or any mandatory unscheduled prepayment, purchase, or other early funding thereof, including, without limitation, any Event of indebtedness Default under the Private Placement (without giving effect to any cure, waiver or remedy thereof or amendment thereto after the Effective Date);
(f) the Borrower or any of its Subsidiaries (i) has entered involuntarily against it an order for moneys borrowed of any third party given by relief under the Issuer United States Bankruptcy Code or the Guarantor a comparable action is not honoured when due and called upon (except where the aggregate liability taken under any bankruptcy or insolvency law of another country or political subdivision of such guarantee or indemnity country, (ii) generally does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable topay, or admits its inability to, generally to pay, its debts as they fall become due, (iii) makes a general assignment for the benefit of creditors, (iv) applies for, seeks, consents to, or acquiesces in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institutes any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code or any comparable law, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) makes any board of directors resolution in direct furtherance of any matter described in clauses (i)-(v) above, or (vii) fails to contest in good faith any appointment or proceeding described in this
Section 7.1 (f);
(g) a custodian, receiver, trustee, examiner, liquidator or similar official is deemed unable appointed for the Borrower or any of its Subsidiaries or any substantial part of its property, or a proceeding described in Section 7.1(f)(v) is instituted against the Borrower or any of its Subsidiaries, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any of its Subsidiaries fails within thirty (30) days (or such earlier date as any steps to execute on such judgment or order take place) to pay, bond or otherwise discharge, or to obtain an indemnity against on terms and conditions satisfactory to the Lenders in their sole discretion, any judgment or order for the payment of money in excess of $5,000,000 which is uninsured or underinsured by at least such amount (PROVIDED THAT there is adequate assurance, in the sole discretion of the Lenders, that the insurance proceeds attributable thereto shall be paid promptly upon the expiration of such time period or resolution of such proceeding), which is not stayed on appeal or otherwise being appropriately contested in good faith in a manner that stays execution;
(i) the Borrower or any of its Subsidiaries fails to pay when due an amount aggregating in excess of $1,000,000 that it is liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan having Unfunded Vested Liabilities of any of the Borrower or any of its debts Subsidiaries in excess of $1,000,000 (a "MATERIAL PLAN") is filed under Title IV of ERISA in a distress termination pursuant to Section 4041(c) of ERISA; or for the purposes PBGC institutes proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; or a proceeding is instituted by a fiduciary of any applicable lawMaterial Plan against the Borrower or any of its Subsidiaries to collect any liability under Section 515 or 4219(c)(5) of ERISA and such proceeding is not dismissed within thirty (30) days thereafter; or a condition exists by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(j) the Borrower, any Guarantor, any Person acting on behalf of the Borrower or any Guarantor or any governmental, judicial or arbitral authority challenges the validity of any Credit Document or the Borrower's or any Guarantor's obligations thereunder, or is adjudicated any Credit Document ceases to be in full force and effect in all material respects or found bankrupt or insolventceases to give to the Agent and the Lenders the rights and powers purported to be granted in their favor thereby in all material respects; or
(Fk) if (A) an order is made against the Issuer any Person or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation two or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, more Persons acting in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary concert shall acquire beneficial ownership (within the meaning of Section 736 Rule 13d-3 of the Companies Securities Exchange Act 1985) of 1934), directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions securities of the Trust Deed, but it shall not be bound to institute any Borrower (or other securities convertible into such proceedings unless securities) representing fifty percent (a50%) it shall have been so directed by an Extraordinary Resolution or more of the Noteholders or so requested in writing by the holders combined voting power of at least one-quarter in nominal amount all outstanding securities of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be Borrower entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements vote in the ordinary course election of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);directors.
Appears in 1 contract
Xxxxxx of Default. An "Event of Default" shall exist if any of the following conditions or events shall occur and be continuing:
(a) Events the Company defaults in the payment of Default any principal or Make-Whole Amount, if any, on any Note when the same becomes due and Enforcement relating only payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term contained in Sections 10.1 through 10.9; or
(d) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to Senior Notesin paragraphs (a), (b) and (c) of this Section 11) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a _notice of default_ and to refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made; or
(i) This Condition 9(athe Company or any Restricted Subsidiary is in default (as principal or as guarantor or other surety) shall apply only to Senior Notes.
in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness (iiother than the Notes and other than Indebtedness, the payments for which have been made into an escrow or court appointed trustee or account pending settlement of a dispute) The Trustee at its discretion may, and if so requested that is outstanding in writing by the holders an aggregate principal amount of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (butleast, in the case of the happening of any of the events mentioned in sub-paragraphs (B)single default, (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them $3,000,000 and, in the case of interestall defaults collectively, such default continues for a $5,000,000 beyond any period of 30 days; grace provided with respect thereto, or
(Bii) if the Issuer Company or any Restricted Subsidiary is in default in the Guarantor fails to perform, observe performance of or comply compliance with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed term of any evidence of any Indebtedness (other than any obligation of the Issuer or Notes and other than Indebtedness outstanding under the Guarantor Credit Agreement, provision for the payment of any principal or premium or interest which is made in respect of the NotesSection 11(g)) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has that is outstanding in an outstanding aggregate principal amount of at least least, in the Specified Amount) case of any single default, $3,000,000 and, in the Issuer case of all defaults collectively, $5,000,000 or the Guarantor is not paid on its due date of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared (or by the expiry of any applicable grace period as originally provided) one or becomes more Persons are entitled to declare such Indebtedness to be), due and payable prior to before its stated maturity by reason or before its regularly scheduled dates of default payment, or
(iii) as a consequence of the occurrence or if any guarantee of or indemnity in respect continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests), (1) the Company or any Restricted Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in respect an aggregate outstanding principal amount of indebtedness for moneys borrowed at least, in the case of any third party given by single default, $3,000,000 and, in the Issuer case of all defaults collectively, $5,000,000, or (2) one or more Persons have the Guarantor is not honoured when due and called upon (except where right to require the aggregate liability under Company or any Restricted Subsidiary so to purchase or repay such guarantee or indemnity does not equal or exceed the Specified Amount)Indebtedness; or
(Dg) if, otherwise than default or the happening of any event shall occur under the Credit Agreement and such default or event shall continue for a period of time sufficient to permit the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution acceleration of the Noteholders, an order is made or an effective resolution is passed maturity of any Indebtedness for the winding up borrowed money of the Issuer Company or the Guarantorany Restricted Subsidiary outstanding thereunder; or
(Eh) if the Issuer Company or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or any Restricted Subsidiary (i) is unable togenerally not paying, or admits in writing its inability to, to pay, its debts as they fall become due, (ii) files, or is deemed unable consents by answer or otherwise to pay its debts pursuant the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the purposes benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any applicable law, or is adjudicated or found bankrupt or insolventof the foregoing; or
(Fi) if (A) a court or governmental authority of competent jurisdiction enters an order is made appointing, without consent by the Company or any of its Restricted Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any of its Restricted Subsidiaries, or any such petition shall be filed against the Issuer Company or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them its Restricted Subsidiaries and (B) in any case is such petition shall not discharged be dismissed within 60 days; or
(Gj) if a final judgment or judgments for the Issuer payment of money aggregating in excess of $5,000,000 (excluding for purposes of such determination such amount of any insurance proceeds paid by or on behalf of the Guarantor initiates Company or consents any of its Restricted Subsidiaries in respect of such judgment or judgments or unconditionally acknowledged in writing to judicial proceedings relating to itself under any applicable liquidationbe payable by the insurance carrier that issued the related insurance policy) are rendered against one or more of the Company and its Restricted Subsidiaries and which judgments are not, insolvencywithin 60 days after entry thereof, compositionbonded, reorganisation discharged or other similar lawsstayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or
(Hk) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA Section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the Issuer ceases to be a subsidiary aggregate "amount of unfunded benefit liabilities" (within the meaning of Section 736 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed $5,000,000, (iv) the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes Company or any of them ERISA Affiliate shall have become due and repayable and have not been repaid, incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the penalty or excise tax provisions of the Trust DeedCode relating to employee benefit plans, but it shall not be bound to institute (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Restricted Subsidiary establishes or amends any employee welfare benefit plan that provides post- employment welfare benefits in a manner that would increase the liability of the Company or any Restricted Subsidiary thereunder; and any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders event or so requested events described in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
clauses (i) “indebtedness for moneys borrowed“ means through (vi) above, either individually or together with any present other such event or future indebtedness for or events, could reasonably be expected to have a Material Adverse Effect. As used in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptanceSection 11(k), the terms "employee benefit plan" and provided further that each "employee welfare benefit plan" shall have the respective meanings assigned to such terms in Section 3 of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);ERISA.
Appears in 1 contract
Samples: Note Purchase Agreement (Oceaneering International Inc)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) Any one or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any more of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank” hereunder:
(a) indebtedness default in the payment when due of all or any part of the principal of any Loan (whether at the stated maturity thereof or at any other time provided for moneys borrowed in respect this Agreement); or default for a period of retail deposits held by such entitythree (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) indebtedness for moneys borrowed in respect of agreements default in the ordinary course observance or performance of business any covenant set forth in Sections 8.1 (only with respect to purchase the first sentence thereof), 8.5 (for a period of five (5) days), 8.7, 8.8, 8.9, 8.10, 8.20, 8.21 (if not replaced with another Eligible Property or repurchase securities Eligible Properties in accordance with Section 7.3 hereof within ten (10) Business Days after the period of notice required by Section 7.3), 8.23 or loans; and8.25 hereof;
(c) contingent liabilities incurred default in the ordinary course observance or performance of banking business any other provision hereof or of any other Loan Document which is not remedied within thirty (including banker’s acceptances30) days after the earlier of
(i) the date on which such failure shall first become known to any Responsible Officer of the Borrower or (ii) written notice thereof is given to the Borrower by the Administrative Agent; provided, trade acceptanceshowever, letters if such a default is susceptible of credit and finance acceptance), cure but cannot reasonably be cured within such thirty (30) day period and provided further that each the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such default, provided such additional period shall not exceed sixty (60) days;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the foregoing items date of the issuance or making or deemed making thereof; provided, that such breach of a representation or warranty shall not constitute an Event of Default if within ten (10) days of the Borrower’s knowledge of such breach, the Borrower takes such action as may be required to make such representation or warranty to be true in this definition all material respects as made and it did not have a Material Adverse Effect;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (and the related grace period, if any, shall have expired), or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void except as expressly permitted by the terms hereof;
(f) default and expiration of any cure periods related thereto shall occur under (x) any Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $10,000,000 or (y) any recourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $1,000,000, or a default and expiration of any cure periods related thereto, shall occur under any indenture, agreement or other instrument under which such Indebtedness for Borrowed Money may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be deemed to constitute indebtedness for moneys borrowed only entered or filed against the Borrower or any Subsidiary, or against any of its Property, in an aggregate amount in excess of $5,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or in the case of contingent obligations, the indebtedness any Material Subsidiary shall (i) have entered involuntarily against it an order for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the case may be)benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it within sixty (60) days, (vi) take any board of director or shareholder action (including the convening of a meeting) in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 9.1(k) hereof;
(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Subsidiary, or any substantial part of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted against the Borrower or any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(l) the Common Stock of Parent fails to be duly listed on the New York Stock Exchange, the NYSE American or The NASDAQ Stock Market; or
(m) any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than in accordance with the terms hereof or thereof, or satisfaction in full or all the Obligations, is revoked, terminated, cancelled or rescinded, without the prior written approval of the Administrative Agent; or any Borrower or any Guarantor commences any legal proceeding at law or in equity to contest, or make unenforceable, cancel, revoke or rescind any of the Loan Documents, or any court or any other Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Xxxxxx of Default. (a) The following events shall constitute Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bankthis Lease:
(a) indebtedness A default by Tenant in the payment when due of any Base Rent or Additional Rent or any other sum payable hereunder and the continuation of such default for moneys borrowed in respect a period of retail deposits held by five (5) days after the same is due; provided, however, that on not more than one (1) occasion during any twelve (12) month period within the Term, Landlord shall give Tenant a written notice of delinquency and shall not declare an Event of Default if such entitydelinquency is cured within two (2) business days after delivery of such notice (it being understood that no further delinquency notice shall be required for the ensuing twelve (12) months);
(b) indebtedness for moneys borrowed in respect of agreements A default by Tenant in the ordinary course performance of business any of the other terms, covenants, agreements or conditions contained herein and the continuation of such default for a period of 20 days after notice by Landlord or beyond the time reasonably necessary for cure if the default is of a nature to purchase require more than 20 days to remedy;
(c) The bankruptcy or repurchase securities insolvency of Tenant or loansany guarantor of this Lease, transfer by Tenant or any guarantor of this Lease in fraud of creditors, an assignment by Tenant or any guarantor of this Lease for the benefit of creditors, or the commencement of any proceedings of any kind by or against Tenant or any guarantor of this Lease under any provision of the Federal Bankruptcy Act or under any other insolvency, bankruptcy or reorganization act unless, in the event any such proceedings are involuntary, Tenant is discharged from the same within 60 days thereafter;
(d) The appointment of a receiver for a substantial part of the assets of Tenant;
(e) The abandonment of the Premises;
(f) The levy upon this Lease or any estate of Tenant hereunder by any attachment or execution and the failure to have such attachment or execution vacated within 20 days thereafter; and
(cg) contingent liabilities incurred in If Tenant violates the ordinary course same term or condition of banking business this Lease on three (including banker’s acceptances3) occasions during any twelve (12) month period or thereafter violates the same term or condition on two (2) occasions during any succeeding twelve (12) month period, trade acceptances, letters of credit and finance acceptance), and provided further that each Landlord shall have the right to exercise all remedies for any violations of the foregoing items in this definition shall be deemed same term or condition during the next twelve (12) months without providing further notice or an opportunity to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);cure.
Appears in 1 contract
Samples: Lease (RingCentral Inc)
Xxxxxx of Default. Each of the following (each an “Event of Default”) shall constitute an Event of Default for purposes of this Agreement:
(a) Events the occurrence of Default a “Default” or an “Event of Default” as described and Enforcement relating only defined in any of the Operative Documents; or
(b) the Borrower shall fail to Senior Notespay any principal of any Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any fees or interest on any Reimbursement Obligation, or any other amount payable hereunder or under any other Credit Document, within five (5) days after any such interest, fees or other amount becomes due in accordance with the terms hereof; or
(c) any representation or warranty made or deemed made by any Credit Party herein or in any other Credit Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Credit Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or
(d) any Credit Party shall default in the observance or performance of any agreement contained in clause (i) This Condition 9(a) shall apply only to Senior Notes.
or (ii) The Trustee at its discretion mayof Section 6.4(a) (with respect to the Guarantor and the Borrower only), Section 6.7(a), Section 6.9 or Article 7 of this Agreement; or
(e) any Credit Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Credit Document (other than as provided in paragraphs (a) through (c) of this Section), and if so requested in writing such default shall continue unremedied for a period of 30 days after the earlier of (i) knowledge thereof by any Responsible Officer of any Credit Party or (ii) notice to the holders of at least one-quarter in nominal amount of Borrower from the Notes then outstanding Administrative Agent or the Required Lenders; or
(as defined in the Trust Deedf) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders any Group Member shall (subject i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Reimbursement Obligations) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace or notice and cure, if any, provided in any instrument or agreement under which such Indebtedness was created; or (iii) any other event shall occur or condition shall exist under any agreement or instrument relating to being indemnified any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to its satisfactionaccelerate the maturity of such Indebtedness; or any such Indebtedness shall be declared due and payable, or be required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the scheduled maturity thereof by reason of such event or condition; provided, that a default, event or condition described in clause (i), (butii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, in the case at such time, one or more defaults, events or conditions of the happening of any of the events mentioned type described in sub-paragraphs clauses (Bi), (C), (E), (F), (Gii) and (Hiii) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest this paragraph (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“e) shall have occurred and be continuing with respect to Indebtedness the total principal amount of which exceeds in the aggregate $100,000,000 (provided thatwhich, in the case of Indebtedness arising under any Hedge Agreement, shall be determined as the occurrence amount, if any, that would then be payable by the Group Member thereunder if such Hedge Agreement were to be terminated as a result of default by such Group Member); or
(g) (i) any Group Member shall commence any case, proceeding or other action (A) under any existing or future law of any event jurisdiction, domestic or events foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 90 days; or (iii) there shall be commenced against any Group Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 90 days from the entry thereof; or (iv) any Group Member shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in sub-paragraphs clause (D) i), (ii), or (Fiii) below above; or (v) any Group Member shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan, any Plan shall have failed to satisfy the minimum funding standard (as determined pursuant to Section 412 of the Code and Section 302 of ERISA) for a plan year, or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Guarantor, the Notes Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall become immediately occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and automatically due in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, results in liabilities of the Group Members in respect thereof in excess of $100,000,000; or
(i) one or more judgments or decrees shall be entered against any Group Member involving in the aggregate liabilities (not paid or not fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $100,000,000 or more, and payable without all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
(j) the guarantee contained in Article Nine of this Agreement shall cease, for any declaration or other notice reason, to the Issuer be in full force and effect or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 daysBorrower shall so assert; or
(Bk) if the Issuer (i) any “person” or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed “group” (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest as such terms are used in respect of the NotesSections 13(d) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount14(d) of the Issuer or the Guarantor is not paid on its due date (or by the expiry Securities Exchange Act of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or1934, as amended (the case may be“Exchange Act”)) shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of more than 30% of the Guarantor.outstanding common stock of the Guarantor or (ii) the board of directors of the Guarantor shall cease to consist of a majority of Continuing Directors; or
(iiil) At any time after “Event of Default” as defined in the Notes Revolving Credit Agreement shall exist or have occurred, or
(m) receipt of notice that any of them shall have the Bonds has become due and repayable and have not been repaid, subject to mandatory redemption or special mandatory redemption pursuant to the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions terms of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);Indenture.
Appears in 1 contract
Samples: Letter of Credit and Security Agreement (Agl Resources Inc)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any Each of the following events (is an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include ” with respect to any entity which is a bankthe Securities:
(a) indebtedness failure to pay interest on any Security when such interest becomes due and payable and such default is continued for moneys borrowed in respect of retail deposits held by such entity30 days;
(b) indebtedness for moneys borrowed in respect failure to pay principal of agreements in (or premium including the ordinary course of business to purchase or repurchase securities or loans; andMake-Whole Premium, if any, on) any Security when it becomes due and payable;
(c) contingent liabilities incurred failure by the Company to make an offer in connection with a Change of Control Repurchase Event or Event of Loss Repurchase Event in accordance with the provisions described under Section 4.02 of this Indenture;
(d) failure to comply with any covenant or agreement in this Indenture in respect of the Securities, and such default or breach is continued for 90 days (or 150 days with respect to Section 4.09 of this Indenture; provided, however, that beginning on the 91st day the Note Parties are not in compliance with Section 4.09, additional interest at a rate of 0.25% per annum shall become due and payable (in the ordinary course same manner and at the same time as regular interest payments) on the Securities until such covenant is complied with) after there has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of banking at least 25% in principal of Outstanding Securities affected thereby a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder (other than a default in performance, or breach, of a covenant or agreement specifically dealt with in clauses (a), (b) or (c) above);
(e) any Securities Guarantee ceases to be in full force and effect (other than in accordance with the terms of such Securities Guarantee or pursuant to the terms of this Indenture or other applicable Note Document) or any Guarantor denies or disaffirms its obligations under its Securities Guarantee;
(f) the Company or any other Note Party pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of a Bankruptcy Custodian of it or for all or substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect for 90 days and that:
(1) is for relief against the Company or any other Note Party as debtor in an involuntary case,
(2) appoints a Bankruptcy Custodian of the Company or any other Note Party or a Bankruptcy Custodian for all or substantially all of the property of the Company, or any other Note Party or
(3) orders the liquidation of the Company or any other Note Party; or
(h) except as permitted by the Note Documents, the Security Documents shall for any reason cease to create a valid and perfected first-priority Lien (subject to Permitted Collateral Liens) on any portion of the Collateral having a fair market value in excess of $25,000,000 (in each case, other than in accordance with the terms of this Indenture or the terms of the Security Documents); provided that if such failure is susceptible to cure, no Event of Default shall arise with respect thereto until 45 days after any Officer of any Collateral Grantor becomes aware of such failure, which failure has not been cured during such time period, or (ii) any Collateral Grantor asserts in writing that any Lien created under the Security Documents is invalid or unenforceable. Upon the occurrence of an Event of Default pursuant to this Section 6.01 with respect to Securities all or part of which is represented by a Global Security, a record date shall automatically and without any other action taken by any Person be set for the purpose of determining the Holders of Outstanding Securities entitled to join in any Notice of Default, which record date shall be the close of business on the day the Trustee shall have received such Notice of Default. The Holders of Outstanding Securities on such record date (including banker’s acceptances, trade acceptances, letters of credit and finance acceptanceor their duly appointed agents), and only such Persons, shall be entitled to join in such Notice of Default, whether or not such Holders remain Holders after such record date; provided further that each that, unless such Notice of Default shall have become effective by virtue of Holders of the foregoing items requisite principal amount of Outstanding Securities on such record date (or their duly appointed agents) having joined in such Notice of Default prior to the day which is 90 days after such record date, such Notice of Default shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this definition paragraph shall prevent a Holder (or duly appointed agent thereof) from giving, before or after expiration of such 90-day period, a Notice of Default contrary to or different from a Notice of Default previously given by a Holder, or from giving, after the expiration of such period, a Notice of Default identical to a Notice of Default that has been cancelled pursuant to the proviso to the preceding sentence, in any of which events a record date in respect thereof shall be deemed to constitute indebtedness for moneys borrowed only set pursuant to the extent it would be provisions of this Section 6.01. However, a Default under Section 6.01(d), (e) or (h) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the case outstanding Securities (with a copy to the Trustee) notify the Company of contingent obligationsthe Default and, with respect to Section 6.01(d), (e) or (h), the indebtedness for moneys borrowed Company does not cure such Default within the time specified in Section 6.01(d), (e) or (h) after receipt of such notice; provided that a notice of Default may not be given with respect to any action taken, and reported publicly or to the primary obligor would be) required Holders, more than two years prior to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);such notice of Default.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Xxxxxx of Default. (a) Events The occurrence of Default and Enforcement relating only to Senior Notesany one or more of the following (after expiration of any applicable cure period as provided in Paragraph 22(b)) shall, at the sole option of Landlord, constitute an “Event of Default” under this Lease:
(i) This Condition 9(a) shall apply only a failure by Tenant to Senior Notes.make any payment of any Monetary Obligation on or prior to its due date, regardless of the reason for such failure;
(ii) The Trustee a failure by Tenant duly to perform and observe, or a violation or breach of, any other provision hereof not otherwise specifically mentioned in this Paragraph 22(a);
(iii) any representation or warranty made by Tenant herein or in any certificate, demand or request made pursuant hereto proves to be incorrect, now or hereafter, in any material respect;
(iv) a default beyond any applicable cure period or at maturity by Tenant [or Guarantor] in any payment of principal or interest on any obligations for borrowed money having an original principal balance of $________________ or more in the aggregate, or in the performance of any other provision contained in any instrument under which any such obligation is created or secured (including the breach of any covenant thereunder), (x) if such payment is a payment at maturity or a final payment, or (y) if an effect of such default is to cause such obligation to become due prior to its discretion maystated maturity;
(v) a default by Tenant [or Guarantor] beyond any applicable cure period in the payment of rent under, or in the performance of any other material provision of, any other lease or leases that have, in the aggregate, rental obligations over the terms thereof of $________________ or more if the Landlord under any such lease or leases commences to exercise its remedies thereunder;
(vi) a final, non-appealable judgment or judgments for the payment of money in excess of $________________ in the aggregate shall be rendered against Tenant [or Guarantor] and the same shall remain undischarged for a period of sixty (60) consecutive days;
(vii) Reserved [for Post-Closing Obligations, if any];
(viii) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) seek or consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) make a general assignment for the benefit of creditors, or (E) be unable to pay its debts as they mature;
(ix) a court shall enter an order, judgment or decree appointing, without the consent of Tenant, a receiver or trustee for it or for any of the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, and if so requested such order, judgment or decree shall remain undischarged or unstayed sixty (60) days after it is entered;
(x) the Leased Premises shall have been vacated or abandoned;
(xi) Tenant shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution;
(xii) the estate or interest of Tenant in writing by the holders of at least one-quarter in nominal amount any of the Notes then outstanding Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after it is made;
(xiii) a failure by Tenant to perform or observe, or a violation or breach of, or a misrepresentation by Tenant under any provision of any Assignment or any other document between Tenant and Lender or from Tenant to Lender, if such failure, violation, breach or misrepresentation gives rise to a default beyond any applicable cure period with respect to any Loan;
(xiv) a failure by Tenant to maintain in effect any license or permit necessary for the use, occupancy or operation of the Leased Premises;
(xv) a failure by Tenant to deliver the estoppel described in Paragraph 25 within the time period specified therein;
(xvi) Tenant shall enter into an Asset Transfer in violation of Paragraph 21(______);
(xvii) an Event of Default (as defined in the Trust DeedGuaranty) or if so directed by an Extraordinary Resolution beyond any applicable cure period shall occur under the Guaranty; [or]
(as defined in the Trust Deedxviii) of the Noteholders Tenant shall (subject fail to being indemnified to its satisfaction)provide, (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deedmaintain and, if any necessary, replenish the Security Deposit in accordance with the requirements of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the GuarantorParagraph _____.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed No notice or cure period shall be required in respect any one or more of agreements the following events: (A) the occurrence of an Event of Default under clause (i) (except as otherwise set forth below), [(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii) or (xviii)] of Paragraph 22(a); (B) the default consists of a failure to pay Basic Rent, a failure to provide any insurance required by Paragraph 16 or an assignment or sublease entered into in violation of Paragraph 21; or (C) the default is such that any delay in the ordinary course exercise of business a remedy by Landlord could reasonably be expected to purchase cause irreparable harm to Landlord. If the default consists of the failure to pay any Monetary Obligation under clause (i) of Paragraph 22(a), the applicable cure period shall be three (3) days from the date on which notice is given, but Landlord shall not be obligated to give notice of, or repurchase securities allow any cure period for, any such default more than one (1) time within any Lease Year. If the default consists of a default under clause (ii) or loans; and
(cxiii) contingent liabilities incurred of Paragraph 22(a), other than the events specified in clauses (B) and (C) of the first sentence of this Paragraph 22(b), the applicable cure period shall be twenty (20) days from the date on which notice is given or, if the default cannot be cured within such twenty (20) day period and delay in the ordinary course exercise of banking business a remedy would not (in Landlord's reasonable judgment) cause any material adverse harm to Landlord or any of the Leased Premises, the cure period shall be extended for the period required to cure the default (but such cure period, including banker’s acceptancesany extension, trade acceptances, letters of credit and finance acceptanceshall not in the aggregate exceed sixty (60) days), provided that Tenant shall commence to cure the default within the said twenty-day period and provided further that each shall actively, diligently and in good faith proceed with and continue the curing of the foregoing items in this definition default until it shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);fully cured.
Appears in 1 contract
Samples: Lease Agreement
Xxxxxx of Default. Each of the following events or conditions shall be an “Event of Default”:
(a) Events of Default and Enforcement relating only any failure by the Borrower to Senior Notes
pay when due (i) This Condition 9(a) shall apply only to Senior Notes.
any amount of principal owing under a Loan Document, (ii) The Trustee at its discretion may, and if so requested in writing any amount of interest owing under a Loan Document within five (5) Business Days of the due date thereof or (iii) any fee or other amount (other than principal or interest) owing under a Loan Document within thirty(30) days of the earlier of the date the Borrower receives (x) the invoice or (y) a written demand from any Lender or the Administrative Agent;
(b) any failure by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject Borrower to being indemnified to comply with its satisfactionobligations under Sections 7.01(a), (bute), (g), (i) or, (l) or Section 7.02;
(c) any representation or warranty made by the Borrower in any Loan Document or in connection herewith, or any statement made in any certificate, report or financial statement furnished by the Borrower, has been demonstrated to have been false or misleading in any material respect when made or deemed made, provided that such false or misleading statement shall not constitute an Event of Default if such condition or circumstance is (i) subject to cure and (ii) the facts or conditions giving rise to such misrepresentation or misstatement are cured in such a manner as to eliminate such misrepresentation or misstatement within thirty (30) days after the Borrower’s having knowledge thereof;
(d) any failure by the Borrower to perform or comply with any of the covenants or provisions set forth in a Loan Document (exclusive of any events specified as an Event of Default in any other subsection of this Section 8.01), which failure remains uncured for a period of thirty (30) days, or in the case of Section 7.01(h) (solely to the happening of extent it relates to compliance with Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions) five (5) Business Days, in each case, after the Administrative Agent or any Lender has given written notice thereof to the Borrower;
(e) any event specified in any agreement or instrument under which there may be issued, or by which there may be secured or evidenced, External Indebtedness of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any of the following events (“Events of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor Borrower or any other formality required):
(A) if default is made Material Subsidiary thereof shall occur and shall result in the payment of any principal, premium (if any) or interest due such External Indebtedness in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount in excess of at least the Specified Amountone hundred million U.S. Dollars (U.S. $100,000,000) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally providedits equivalent) becoming or becomes being declared due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when date on which it would otherwise have become due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); orpayable;
(Di) if, otherwise than for (A) the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens Borrower shall be unable generally to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, pay its debts as they fall due, due or is deemed unable shall admit in writing its inability to pay its debts pursuant as they fall due or shall become insolvent; (B) the Borrower shall apply for or consent to the appointment of any liquidator, receiver, trustee, síndico, conciliador or administrator for all or a substantial part of its business, properties, assets, or revenues; or (C) a liquidator, receiver, trustee, or administrator shall be appointed for the purposes Borrower and such appointment shall continue undismissed, undischarged or unstayed for a period of ninety (90) days; (ii) the Borrower shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding; (iii) a bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, proceso de reestructuración, proceso de reorganización, proceso de insolvencia, concurso mercantil, quiebra, or similar executory or judicial proceeding shall be instituted against the Borrower and such proceeding shall remain undismissed, undischarged or unstayed for a period of ninety (90) days; (iv) the Borrower shall take any action seeking to take advantage of any applicable lawother law relating to its bankruptcy, insolvency, liquidation, termination, dissolution, winding up, or composition, or readjustment of debts; or (v) the Borrower shall take any corporate or similar action for the purpose of effecting any of the foregoing; provided that for as long as Colombia’s applicable insolvency laws provide for restrictions on or sanctions associated with the ability of the Lenders, directly or indirectly, to exercise the right to declare an Event of Default under this Section 8.01(f), the Lenders and Borrower hereto agree that nothing in this Section 8.01(f) shall (x) prevent the commencement of any restructuring proceeding in Colombia, whether voluntary or involuntary, in respect of the Borrower, (y) prohibit the Borrower from entering into a restructuring proceeding in Colombia, or (z) cause an unfavorable effect (efecto desfavorable) upon the Borrower;
(g) any final, non-appealable judgment against the Borrower or any Material Subsidiary (i) shall have been entered on a claim not covered by insurance in an aggregate amount of one hundred million U.S. Dollars (U.S. $100,000,000)(or its equivalent in another currency) or more, and (ii) such judgment has not been removed, vacated, discharged or satisfied for a period of sixty (60) days from the date of such final judgment;
(h) any Governmental Authority shall have (i) condemned, seized or otherwise expropriated (either through a single act or a series of acts) all or substantially all of the property of the Borrower or (ii) taken any action that materially curtails the authority of the Borrower to conduct its business;
(i) any authorization, approval, Governmental Approval, consent, license, exemption, filing, registration, notarization or other requirement of any Governmental Authority necessary to enable the Borrower to comply with its obligations under any Loan Document shall have been revoked, rescinded, suspended, held invalid or otherwise limited in effect in a manner that could reasonably be expected to have a Material Adverse Effect;
(j) any Loan Document ceases to be in full force and effect or is adjudicated declared in a final, non-appealable judgment to be unenforceable against the Borrower (in each case, other than as a result of any action or found bankrupt inaction on the part of the Administrative Agent or insolventany Lender), the validity or enforceability of any Loan Document at any time is challenged by the Borrower; or the Borrower repudiates any Loan Document, or does or causes to be done any act or thing evidencing an intention to repudiate any Loan Document; or
(Fk) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation Colombia shall cease to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole own and control at least 50.1% of the undertaking or assets of any of them, or an encumbrancer takes possession outstanding economic and voting ownership interests of the whole Borrower or substantially any successor entity permitted under the whole of terms hereof and the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against Borrower shall fail to prepay the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (Loan within the meaning of Section 736 of the Companies Act 1985thirty (30) directly or indirectly, of the Guarantordays following that event.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only to the extent it would be (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);
Appears in 1 contract
Samples: Loan Agreement (Ecopetrol S.A.)
Xxxxxx of Default. (a) Events An “Event of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) Default” shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, exist if any of the following conditions or events (“Events of Default“) shall have occurred occur and be continuing continuing:
(provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (Da) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made defaults in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee Make-Whole Amount, on the Issuer or the Guarantor (as the case may be) of notice requiring any Note when the same to be remediedbecomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(Cb) if the Issuer defaults in the payment of any indebtedness interest on any Note for moneys borrowed more than three Business Days after the same becomes due and payable; or
(c) either Constituent Company defaults in the performance of or compliance with any term contained in Section 7.1(d), Section 9.14 or Section 10 or any Additional or More Restrictive Covenant; or
(d) either Constituent Company or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11(a), (b) and (c)), in the Subsidiary Guaranty Agreement or in any other Note Document and such default is not remedied within 30 days after the earlier of (1) a Responsible Officer of either Constituent Company obtaining actual knowledge of such default and (2) either Constituent Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11(d)); or
(e) (1) any representation or warranty made in writing by or on behalf of either Constituent Company or by any officer of either Constituent Company in this Agreement or any other Note Document or any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which indebtedness has made, or (2) any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in the Subsidiary Guaranty Agreement or any other Note Document or any writing furnished in connection with the Subsidiary Guaranty Agreement or any other Note Document proves to have been false or incorrect in any material respect on the date as of which made; or
(1) either Constituent Company or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an outstanding aggregate principal amount of at least $25,000,000 (or, in the Specified Amountcase of Nonrecourse Indebtedness, $175,000,000) of the Issuer or the Guarantor is not paid on its due date (or by its equivalent in the expiry relevant currency of payment) beyond any period of grace provided with respect thereto, or (2) either Constituent Company or any Subsidiary is in default in the performance of or compliance with any term of any applicable grace period as originally providedevidence of any Indebtedness in an aggregate outstanding principal amount of at least $25,000,000 (or, in the case of Nonrecourse Indebtedness, $175,000,000) (or its equivalent in the relevant currency of payment) or becomes of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has (i) been declared due and payable prior to before its stated maturity or before its regularly scheduled dates of payment or (ii) one or more Persons are entitled to declare such Indebtedness to be due and payable before its stated maturity or before its regularly scheduled dates of payment, provided that in the case of clause (ii), upon the receipt by reason each holder of Notes of evidence that such default has been waived in writing by the requisite Person(s) holding such Indebtedness, so long as the Required Holders shall not have then exercised any of their rights or if any guarantee remedies with respect to such default, such event shall automatically cease to constitute an Event of Default hereunder or indemnity in respect (3) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests), (i) either Constituent Company or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in respect an aggregate outstanding principal amount of indebtedness for moneys borrowed at least $25,000,000 (or, in the case of Nonrecourse Indebtedness, $175,000,000) (or its equivalent in the relevant currency of payment), or (ii) one or more Persons have the right to require either Constituent Company or any third party given Subsidiary so to purchase or repay such Indebtedness, provided that, upon the receipt by each holder of Notes of evidence that such right has been waived in writing by the Issuer requisite Person(s) holding such Indebtedness, so long as the Required Holders shall not have then exercised any of their rights or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any remedies with respect to such guarantee or indemnity does not equal or exceed the Specified Amount)right, such event shall automatically cease to constitute an Event of Default hereunder; or
(Dg) ifeither Constituent Company, otherwise than for the purposes of a reconstruction any Subsidiary Guarantor or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order any Significant Subsidiary (1) is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable togenerally not paying, or admits in writing its inability to, to pay, its debts as they fall become due, (2) files, or is deemed unable consents by answer or otherwise to pay its debts pursuant the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to or for the purposes take advantage of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidationbankruptcy, insolvency, compositionreorganization, reorganisation moratorium or other similar lawslaw of any jurisdiction, or (3) makes an order is made assignment for the benefit of its creditors, (4) consents to the appointment of an administrative a custodian, receiver, trustee or other receiverofficer with similar powers with respect to it or with respect to any substantial part of its property, manager, administrator (5) is adjudicated as insolvent or other similar officialto be liquidated, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to (6) takes corporate action for the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets purpose of any of themthe foregoing; or
(h) a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by either Constituent Company, any Subsidiary Guarantor or any Significant Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an encumbrancer takes possession of the whole order for relief or substantially the whole of the undertaking approving a petition for relief or assets reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of themany jurisdiction, or a distressordering the dissolution, executionwinding-up or liquidation of either Constituent Company, attachmentany Subsidiary Guarantor or any Significant Subsidiary, sequestration or other process is leviedany such petition shall be filed against either Constituent Company, enforced upon, sued out any Subsidiary Guarantor or put in force against the whole or substantially the whole of the undertaking or assets of any of them Significant Subsidiary and (B) in any case is such petition shall not discharged be dismissed within 60 days; or
(Gi) any event occurs with respect either Constituent Company, any Subsidiary Guarantor or any Significant Subsidiary which under the laws of any jurisdiction is analogous to any of the events described in Section 11(g) or Section 11(h), provided that the applicable grace period, if any, which shall apply shall be the Issuer one applicable to the relevant proceeding which most closely corresponds to the proceeding described in Section 11(g) or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar lawsSection 11(h); or
(Hj) one or more final judgments or orders for the payment of money aggregating in excess of $25,000,000 (or its equivalent in the relevant currency of payment), including any such final order enforcing a binding arbitration decision, are rendered against one or more of the Constituent Companies and their Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or
(k) prior to the Security Release Date, either Constituent Company or any of its Subsidiaries shall (1) fail to make a payment when due and payable with respect to Indebtedness under the Bank Credit Agreement (after giving effect to any applicable notice or cure periods thereunder), (2) the Issuer ceases maturity of any Indebtedness under the Bank Credit Agreement shall have been accelerated in accordance with the terms thereof or any Indebtedness under the Bank Credit Agreement shall be required to be prepaid, repurchased, redeemed or defeased prior to the stated maturity thereof or (z) any other event shall have occurred and be continuing which, with or without the passage of time, the giving of notice, or otherwise, would permit any holder or holders of any Indebtedness under the Bank Credit Agreement, any trustee or agent acting on behalf of such holder or holders or any other Person, to accelerate the maturity of any such Indebtedness or require any such Indebtedness to be prepaid, repurchased, redeemed or defeased prior to its stated maturity; provided that upon receipt by the holders of the Notes of evidence that such event has been waived in writing by the requisite parties under the Bank Credit Agreement, such event shall automatically cease to constitute an Event of Default hereunder;
(l) if (1) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a subsidiary waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (2) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Parent Guarantor or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (3) there is any “amount of unfunded benefit liabilities” (within the meaning of Section 736 section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with Title IV of ERISA, (4) the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the Companies Act 1985assets of such Non-U.S. Plans allocable to such liabilities, (5) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes Parent Guarantor or any of them ERISA Affiliate shall have become due and repayable and have not been repaid, incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the penalty or excise tax provisions of the Trust DeedCode relating to employee benefit plans, but it (6) the Parent Guarantor or any ERISA Affiliate withdraws from any Multiemployer Plan, (7) the Parent Guarantor or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Parent Guarantor or any Subsidiary thereunder, (8) the Parent Guarantor or any Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or wound up, or (9) the Parent Guarantor or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall not be bound mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to institute one or more Non-U.S. Plans; and any such proceedings unless event or events described in clauses (a1) it through (9) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect. As used in this Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan” shall have been so directed by an Extraordinary Resolution the respective meanings assigned to such terms in section 3 of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):ERISA;
(im) “indebtedness for moneys borrowed“ means any present or future indebtedness for or the Subsidiary Guaranty Agreement shall cease to be in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include full force and effect with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed Subsidiary Guarantor, any Subsidiary Guarantor or any Person acting on behalf of such Subsidiary Guarantor shall contest in any manner the validity, binding nature or enforceability of the Subsidiary Guaranty Agreement with respect to such Subsidiary Guarantor, or the obligations of retail deposits held by such entityany Subsidiary Guarantor under the Subsidiary Guaranty Agreement are not or cease to be legal, valid, binding and enforceable in accordance with the terms of the Subsidiary Guaranty Agreement;
(bn) indebtedness for moneys borrowed in respect of agreements the Issuer defaults in the ordinary course payment of business to purchase or repurchase securities or loansany Excess Leverage Fee for more than three Business Days after the same becomes due and payable; andor
(co) contingent liabilities incurred after the occurrence of the Security Trigger Date and prior to the Security Release Date, any Lien purported to be created under any Note Document shall cease to be, or shall be asserted by either Constituent Company, any Subsidiary Guarantor or any Grantor not to be, a valid and perfected Lien on any Collateral having a value, individually or in the ordinary course aggregate, in excess of banking business $5,000,000, with the priority required by the applicable Note Documents and the Intercreditor Agreement, except as a result of (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each 1) the sale or other disposition of the applicable Collateral in a transaction permitted under Note Documents or (2) the release of such Lien as a result of the occurrence of the Security Release Date hereunder; or
(p) after the occurrence of the Security Trigger Date and prior to the Security Release Date, the Intercreditor Agreement shall be asserted in writing by either Constituent Company, any Subsidiary Guarantor or any Grantor not to be, in whole or in part, legally valid, binding and enforceable against any party thereto, or the Intercreditor Agreement shall otherwise not be effective to create the rights and obligations purported to be created thereunder (as determined by a court of competent jurisdiction). Notwithstanding the foregoing items in provisions of this definition Section 11, no Default or Event of Default shall be deemed to constitute indebtedness for moneys borrowed only have occurred under any of clauses (f) through (j) with respect to the extent it would be (any event or in the case of contingent obligationsoccurrence described therein relating to Sunstone 42nd St., the indebtedness non-recourse mortgage loan secured by the hotel owned by Sunstone 42nd St. on the First Amendment Date or the 42nd St. Guaranty so long as, immediately prior to and after giving effect to such event or occurrence, (i) the holder of such mortgage loan does not have a claim for moneys borrowed repayment of such mortgage loan under the 00xx Xxxxxx Guaranty in excess of the primary obligor would be) then outstanding principal amount of such mortgage loan (which on the First Amendment Date is $77,174,971.28), accrued and unpaid interest thereon and the costs and expenses of enforcement required to be reflected as paid by the guarantor under the 42nd St. Guaranty or (ii) if the holder of such mortgage loan has a claim in excess of such amount, such holder shall have waived such liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);writing.
Appears in 1 contract
Samples: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening occurrence of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any one or more of the following events shall constitute an event of default hereunder (each an “Events Event of Default“”):
(a) Failure by Borrower to pay any installment of principal and/or interest under the Note when the same becomes due and payable;
(b) Failure by Borrower to observe or perform any other covenants, agreements or provisions herein (other than with respect to the covenants contained in Section 4.1(c) (Financial Statements and Other Reports), Section 4.1(f) (Insurance Requirements), Section 4.1(u) (Financial Covenants, if any), Section 4.1(o) (No Transfer of Equity Interests), and Section 4.1(v) (Single Purpose Entity) for which no cure period shall have occurred and be continuing (provided thatexist), in the case of the occurrence of any event Note, or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) Loan Documents and such failure continues for more thirty (30) days after notice is given of the occurrence thereof;
(c) Failure by Borrower to pay any Real Estate Taxes or insurance premiums in connection with the Property as provided under the Loan Documents;
(d) The vesting of title, or any sale, conveyance, transfer, assignment or further encumbrance in any manner whatsoever of any interest in the Property, or any part thereof, in or to anyone other than 90 days the present owner, or any change in title or ownership of the Property, or any part thereof, without the prior written consent of Lender;
(e) All or a material portion of the Property being taken through condemnation, eminent domain, or any other taking such longer period as that Lender has reason to believe that the Trustee may permit) following service remaining portion of the Property is insufficient to satisfy the outstanding balance of the Note, or the value of the Property being impaired by condemnation, eminent domain or any other taking, (which term when used herein shall include, but not be limited to, any damage or taking by any governmental authority or any other authority authorized by the Trustee on the Issuer laws of any state or the Guarantor United States of America to so damage or take, and any transfer by private sale in lieu thereof), either temporarily for a period in excess of thirty (as 30) days, or permanently;
(f) Any sale, conveyance, assignment or transfer of any beneficial interest in any Borrower Party that does not constitute a Permitted Transfer;
(g) Any representation or warranty of any Borrower Party made herein or in any such guaranty or in any certificate, report, financial statement, or other instrument furnished in connection with the case may making of the Loan Documents, shall prove false or misleading in any material respect;
(h) The Property becomes subject to (1) any tax lien which is superior to the lien of the Security Instrument, other than a lien for local real estate taxes and assessments not due and payable or (2) any mechanic’s, materialman’s, or other lien that is, or is asserted to be, superior to the lien of the Security Instrument and such lien shall remain undischarged for thirty (30) days;
(i) In the event of notice requiring any Material Adverse Change;
(j) A Bankruptcy Event occurs;
(k) The Property shall be materially injured or destroyed by fire or other casualty for which the same cost of restoration is not fully insured or, if fully insured, Borrower has failed to deposit or cause to be remedieddeposited with Lender sufficient funds to cover the cost of restoration with Lender in accordance with the terms of this Agreement;
(l) The death of any individual obligated for all or any portion of Borrower’s obligations under the Loan unless Xxxxxx has been provided with a replacement obligor satisfactory to Lender in Lender’s sole, non-reviewable judgment within ninety (90) days of the individual’s death;
(i) if Borrower shall default beyond any grace period in the payment of principal or interest of any indebtedness of Borrower in excess of Fifty Thousand Dollars ($50,000.00) in the aggregate (including all obligations of other Persons guaranteed by Borrower); or (ii) if Borrower otherwise defaults under the terms of any such indebtedness if the effect of such default is to enable the holder of such indebtedness to accelerate the payment of Borrower’s obligations, which are the subject thereof, prior to the maturity date or prior to the regularly scheduled date of payment;
(n) If any Borrower Party materially breaches or violates the terms of, or if a default (and expiration of any applicable cure period) or an Event of Default occurs under any other existing or future agreement (including, without limitation, the other Loan Documents) between Lender and any Borrower Party; or
(Co) if If any indebtedness final judgment for moneys borrowed the payment of money in excess of Fifty Thousand Dollars (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount$50,000.00) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is not fully and unconditionally covered by insurance or (ii) for which Borrower has not established a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements cash or cash equivalent reserve in the ordinary course full amount of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptancessuch judgment, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness rendered by a court of record against Borrower and such judgment shall continue unsatisfied and in effect for moneys borrowed only to the extent it would be a period of thirty (30) consecutive days without being vacated, discharged, satisfied or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may be);bonded pending appeal.
Appears in 1 contract
Samples: Loan Agreement
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) Any one or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if any more of the following events (shall constitute an “Events Event of Default“) shall have occurred and be continuing (provided that, in the case of the occurrence of any event or events set forth in sub-paragraphs (D) or (F) below in respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer or the Guarantor or any other formality required):
(A) if default is made in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interest, such default continues for a period of 30 days; or
(B) if the Issuer or the Guarantor fails to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed (other than any obligation of the Issuer or the Guarantor for the payment of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days (or such longer period as the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) of notice requiring the same to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity in respect of any payment in respect of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount); or
(D) if, otherwise than for the purposes of a reconstruction or amalgamation on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Noteholders, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantor; or
(E) if the Issuer or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution of the Noteholders, or the Issuer or the Guarantor stops or threatens to stop payment of, or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases to be a subsidiary (within the meaning of Section 736 of the Companies Act 1985) directly or indirectly, of the Guarantor.
(iii) At any time after the Notes or any of them shall have become due and repayable and have not been repaid, the Trustee may, at its discretion and without further notice, institute such proceedings against the Issuer and/or the Guarantor as it may think fit to enforce repayment thereof together with accrued interest and to enforce the provisions of the Trust Deed, but it shall not be bound to institute any such proceedings unless (a) it shall have been so directed by an Extraordinary Resolution of the Noteholders or so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it shall have been indemnified to its satisfaction. No Noteholder, Receiptholder or Couponholder shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank” hereunder:
(a) indebtedness default in the payment when due of all or any part of the principal of any Loan (whether at the stated maturity thereof or at any other time provided for moneys borrowed in respect this Agreement); or default for a period of retail deposits held by such entitythree (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) indebtedness for moneys borrowed in respect of agreements default in the ordinary course observance or performance of business any covenant set forth in Sections 8.1 (only with respect to purchase the first sentence thereof), 8.5 (for a period of five (5) days), 8.7, 8.8, 8.9, 8.10, 8.20, 8.21 (if not replaced with another Eligible Property or repurchase securities Eligible Properties in accordance with Section 7.3 hereof within ten (10) Business Days after the period of notice required by Section 7.3), 8.23 or loans; and8.25 hereof;
(c) contingent liabilities incurred default in the ordinary course observance or performance of banking business any other provision hereof or of any other Loan Document which is not remedied within thirty (including banker’s acceptances30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of the Borrower or (ii) written notice thereof is given to the Borrower by the Administrative Agent; provided, trade acceptanceshowever, letters if such a default is susceptible of credit and finance acceptance), cure but cannot reasonably be cured within such thirty (30) day period and provided further that each the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such default, provided such additional period shall not exceed sixty (60) days;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the foregoing items date of the issuance or making or deemed making thereof; provided, that such breach of a representation or warranty shall not constitute an Event of Default if within ten (10) days of the Borrower’s knowledge of such breach, the Borrower takes such action as may be required to make such representation or warranty to be true in this definition all material respects as made and it did not have a Material Adverse Effect;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (and the related grace period, if any, shall have expired), or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void except as expressly permitted by the terms hereof;
(f) default and expiration of any cure periods related thereto shall occur under (x) any nonrecourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $1030,000,000 or (y) any recourse Indebtedness for Borrowed Money issued, assumed or guaranteed by the Borrower or any Subsidiary aggregating in excess of $110,000,000, or a default and expiration of any cure periods related thereto, shall occur under any indenture, agreement or other instrument under which such Indebtedness for Borrowed Money may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated), or any such Indebtedness for Borrowed Money shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be deemed to constitute indebtedness for moneys borrowed only entered or filed against the Borrower or any Subsidiary, or against any of its Property, in an aggregate amount in excess of $5,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $5,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any Subsidiary, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or in the case of contingent obligations, the indebtedness any Material Subsidiary shall (i) have entered involuntarily against it an order for moneys borrowed of the primary obligor would be) required to be reflected as a liability by generally accepted accounting principles in England and Wales or relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the case may be)benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it within sixty (60) days, (vi) take any board of director or shareholder action (including the convening of a meeting) in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 9.1(k) hereof;
(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Subsidiary, or any substantial part of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted against the Borrower or any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(l) the Common Stock of Parent fails to be duly listed on the New York Stock Exchange, the NYSE American or The NASDAQ Stock Market; or
(m) any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than in accordance with the terms hereof or thereof, or satisfaction in full or all the Obligations, is revoked, terminated, cancelled or rescinded, without the prior written approval of the Administrative Agent; or any Borrower or any Guarantor commences any legal proceeding at law or in equity to contest, or make unenforceable, cancel, revoke or rescind any of the Loan Documents, or any court or any other Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Xxxxxx of Default. (a) Events of Default and Enforcement relating only to Senior Notes
(i) This Condition 9(a) shall apply only to Senior Notes.
(ii) The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in nominal amount of the Notes then outstanding (as defined in the Trust Deed) or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Noteholders shall (subject to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (B), (C), (E), (F), (G) and (H) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Noteholders) give notice to the Issuer that the Notes are, and they shall accordingly thereby become, immediately due and repayable at their Early Redemption Amount, together with accrued interest (if any) as provided in the Trust Deed, if If any of the following events (“Events of Default“) shall have occurred occur and be continuing continuing:
(provided thata) The Borrower shall fail to pay any principal of any Term Loan, Revolving Credit Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Term Loan, Revolving Credit Loan or Reimbursement Obligations, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the case of the occurrence observance or performance of any event or events set forth agreement contained in sub-paragraphs Section 4.16, clause (Di) or (Fii) below in of Section 6.4(a) (with respect of the Guarantor, the Notes shall become immediately and automatically due and payable without any declaration or other notice to the Issuer Borrower only), Section 6.7(a), Section 6.7(b)(i), Section 6.11 or Section 7 of this Agreement; or
(d) Any Loan Party shall default in the Guarantor observance or performance of any other agreement contained in this Agreement or any other formality required):
Loan Document (Aother than as provided in paragraphs (a) if default is made through (c) of this Section) and in the payment of any principal, premium (if any) or interest due in respect of the Notes or any of them and, in the case of interesteach case, such default continues shall continue unremedied for a period of 30 days; or
(Be) The Parent or any of its Subsidiaries (including (x) the Securitization Manager and, if any, the Issuer subsidiary acting in a capacity analogous to the Securitization Manager pursuant to any Additional Securitization Arrangements and (y) the Specified Unrestricted Foreign Entities) shall (i) default in making any payment of any principal of any Indebtedness (including, without limitation, any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the Guarantor fails period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to perform, observe or comply with any obligation, condition or provision binding on it under these Terms and Conditions or the Trust Deed such Indebtedness (other than any obligation Tower Seller Debt) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the Issuer holder or the Guarantor for the payment beneficiary of any principal or premium or interest in respect of the Notes) and such failure continues for more than 90 days Indebtedness (or a trustee or agent on behalf of such longer period as holder or beneficiary) to cause, with the Trustee may permit) following service by the Trustee on the Issuer or the Guarantor (as the case may be) giving of notice requiring the same if required, such Indebtedness to be remedied; or
(C) if any indebtedness for moneys borrowed (which indebtedness has an outstanding aggregate principal amount of at least the Specified Amount) of the Issuer or the Guarantor is not paid on its become due date (or by the expiry of any applicable grace period as originally provided) or becomes due and payable prior to its stated maturity by reason of default or if any guarantee of or indemnity (in respect the case of any payment such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of indebtedness for moneys borrowed of any third party given by the Issuer or the Guarantor is not honoured when due and called upon (except where which exceeds in the aggregate liability under any such guarantee or indemnity does not equal or exceed the Specified Amount)$50,000,000; or
(Di) ifThe Parent or any of its Subsidiaries shall commence any case, otherwise than proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding‑up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Parent or any of its Subsidiaries shall make a general assignment for the purposes benefit of its creditors; or (ii) there shall be commenced against the Parent or any of its Subsidiaries any case, proceeding or other action of a reconstruction nature referred to in clause (i) above that (A) results in the entry of an order for relief or amalgamation on terms previously approved any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Parent or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Parent or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Parent or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing by the Trustee or by an Extraordinary Resolution of the Noteholdersits inability to, an order is made or an effective resolution is passed for the winding up of the Issuer or the Guarantorpay its debts as they become due; or
(Ei) if the Issuer Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or the Guarantor ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of reorganisation on terms approved by the Trustee or an Extraordinary Resolution Section 4975 of the NoteholdersCode) involving any Plan, (ii) the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Single Employer Plan, (iii) the failure by any Loan Party or any Commonly Controlled Entity to make any required contribution to any Multiemployer Plan, (iv) any Plan shall fail to satisfy the Issuer minimum funding standards (as defined in Section 412 or 430 of the Guarantor stops Code or threatens Section 302 of ERISA), including any “accumulated funding deficiency,” whether or not waived, applicable to stop payment ofit, (v) the determination that any Plan is or is unable to, or admits inability to, pay, its debts as they fall due, or is deemed unable to pay its debts pursuant to or for the purposes of any applicable law, or is adjudicated or found bankrupt or insolvent; or
(F) if (A) an order is made against the Issuer or the Guarantor under any applicable liquidation, insolvency, composition, reorganisation or other similar laws, or an order is made for the appointment of an administrative or other receiver, manager, administrator or other similar official, or an administrative or other receiver, manager, administrator or other similar official is appointed, in relation to the Issuer or the Guarantor or, as the case may be, in relation to the whole or substantially the whole of the undertaking or assets of any of them, or an encumbrancer takes possession of the whole or substantially the whole of the undertaking or assets of any of them, or a distress, execution, attachment, sequestration or other process is levied, enforced upon, sued out or put in force against the whole or substantially the whole of the undertaking or assets of any of them and (B) in any case is not discharged within 60 days; or
(G) if the Issuer or the Guarantor initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganisation or other similar laws; or
(H) the Issuer ceases expected to be a subsidiary in “at risk” status (within the meaning of Section 736 430 of the Companies Code or Section 303 of ERISA), or any Lien in favor of the PBGC or a Plan shall arise on the assets of any Loan Party or any Commonly Controlled Entity, (vi) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (vii) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (viii) the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, or the endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA) of, a Multiemployer Plan or (ix) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (ix) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the Parent or any of its Subsidiaries involving for the Parent and its Subsidiaries taken as a whole a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) (i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act 1985of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)‑5 under the Exchange Act), directly or indirectly, of more than 50% of the Guarantor.
economic or voting interests of outstanding common stock of the Parent; (ii) the Parent shall cease to own and control, of record and beneficially, directly, 100% of each class of outstanding Capital Stock of Holdings free and clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); (iii) At Holdings shall cease to own and control, of record and beneficially, directly or indirectly (through Subsidiaries that are Guarantors under (and as defined in) the Guarantee and Collateral Agreement)), 100% of each class of outstanding Capital Stock of SBA Senior Finance free and clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); (iv) SBA Senior Finance shall cease to own and control, of record and beneficially, directly or indirectly (through Subsidiaries that are Guarantors under (and as defined in) the Guarantee and Collateral Agreement)), 100% of each class of outstanding Capital Stock of the Borrower free and clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); (v) the Borrower shall cease to own and control, of record and beneficially, directly or indirectly (through Subsidiaries that are Guarantors under (and as defined in) the Guarantee and Collateral Agreement), 100% of each class of outstanding Capital Stock of SBA Network Management, Inc. free and clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); or (vi) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were not (i) directors of the Parent on the 2018 Refinancing Amendment Effective Date or nominated, appointed or approved by the board of directors of the Parent or (ii) appointed by directors so nominated, appointed or approved; or
(l) Any Person other than the Borrower, a Subsidiary of the Borrower or SBA Network Management, Inc. shall become the Securitization Manager or, if any, the Person acting in a capacity analogous to the Securitization Manager pursuant to any time after Additional Securitization Arrangements; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Notes Borrower, automatically the Revolving Credit Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or any not the beneficiaries of them the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become due and repayable payable, and have not been repaid(B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Trustee Administrative Agent may, at its discretion or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate; and without further notice(ii) with the consent of the Required Lenders, institute such proceedings against the Issuer and/or Administrative Agent may, or upon the Guarantor as it may think fit request of the Required Lenders, the Administrative Agent shall, by notice to enforce repayment thereof together the Borrower, declare the Loans hereunder (with accrued interest thereon) and to enforce all other amounts owing under this Agreement and the provisions other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the Trust Deedthen outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, but it whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Other than any interest earned on the investment of such deposits, which investments shall be bound made at the option and sole discretion of the Administrative Agent, in consultation with the Borrower, in cash or Cash Equivalents and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Amounts held in such cash collateral account shall be applied by the Administrative Agent to institute any the payment of drawings under such proceedings unless (a) it Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been so directed by an Extraordinary Resolution satisfied and all other obligations of the Noteholders or so requested in writing by Borrower hereunder and under the holders of at least one-quarter in nominal amount of the Notes then outstanding; and (b) it other Loan Documents shall have been indemnified to its satisfaction. No Noteholderpaid in full, Receiptholder or Couponholder the balance, if any, in such cash collateral account shall be entitled to proceed against the Issuer or the Guarantor unless the Trustee, having become bound so to proceed, fail to do so within a reasonable time and such failure is continuing. For the purposes of Condition 9(a):
(i) “indebtedness for moneys borrowed“ means any present or future indebtedness for or in respect of moneys borrowed or raised provided that indebtedness for moneys borrowed shall not include with respect to any entity which is a bank:
(a) indebtedness for moneys borrowed in respect of retail deposits held by such entity;
(b) indebtedness for moneys borrowed in respect of agreements in the ordinary course of business to purchase or repurchase securities or loans; and
(c) contingent liabilities incurred in the ordinary course of banking business (including banker’s acceptances, trade acceptances, letters of credit and finance acceptance), and provided further that each of the foregoing items in this definition shall be deemed to constitute indebtedness for moneys borrowed only returned to the extent it would be Borrower (or in the case of contingent obligations, the indebtedness for moneys borrowed of the primary obligor would be) required to such other Person as may be reflected as a liability by generally accepted accounting principles in England and Wales or the United States (as the case may belawfully entitled thereto);.
Appears in 1 contract
