1Events of Default. An “Event of Default” shall mean, with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following: the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof; any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii), the exclusive remedies for which are set forth in Section 4.8) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); such Party becomes Bankrupt; such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. with respect to Seller as the Defaulting Party, the occurrence of any of the following: if at any time, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (90) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty (120) days of the Guaranteed Construction Start Date; Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, or any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted under this Agreement; if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the Expected Energy amount for such period, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum; or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment; with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the failure of the Guarantor to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Seller hereunder; or the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty; or with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit shall fail to meet the definition of Qualified Issuer; the issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; such Letter of Credit fails or ceases to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty (30) days prior to the expiration of the outstanding Letter of Credit.
Appears in 2 contracts
Sources: Renewable Power Purchase Agreement, Renewable Power Purchase Agreement
1Events of Default. An Whenever used herein with respect to the Notes, “Event of Default” means any one of the following events which shall mean, with respect have occurred and be continuing:
(1) failure for 30 days to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of pay interest on any of the following: the failure by such Party to makeNotes, including any Additional Amounts in respect thereof, when due, any payment required pursuant ; or
(2) failure for 15 days to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof; any representation pay principal of or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) dayspremium, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii)any, the exclusive remedies for which are set forth in Section 4.8) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); such Party becomes Bankrupt; such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. with respect to Seller as the Defaulting Party, the occurrence of on any of the following: if Notes when due, whether at any timematurity, Seller delivers upon redemption, by declaration or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (90) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty (120) days of the Guaranteed Construction Start Date; Seller sells, assignsotherwise, or otherwise transfers, or commits of any Guarantor to sell, assign, or otherwise transfer, the Product, or pay any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted amount payable under this Agreementits Guarantee when due; if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the Expected Energy amount for such period, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum; or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment; with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or or
(3) failure to observe or perform any other material covenant contained in this Indenture for 60 days after notice as provided in this Indenture; or
(4) any Capital Market Indebtedness of the Company, the Issuer, FMCH (unless the Guarantee of FMCH has been released) or any Material Subsidiary becomes prematurely repayable as a replacement Letter result of Credit a default in respect of the terms thereof, or the Company, the Issuer, FMCH (unless the Guarantee of FMCH has been released) or any Material Subsidiary fails to fulfill any payment obligation in excess of €75,000,000 or the equivalent thereof under any Capital Market Indebtedness or under any guarantees or suretyships given for any Capital Market Indebtedness of others within 30 days from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each caseits due date or, in the amount required hereunder case of such guarantee or suretyship, within ten 30 days of such guarantee or suretyship being invoked, unless the Company, the Issuer, FMCH or the relevant Material Subsidiary contests in good faith that such payment obligation exists or is due or that such guarantee or suretyship has been validly invoked or if a security granted therefor is enforced on behalf of or by the creditor(s) entitled thereto; or
(105) Business Days after Seller receives Notice of the occurrence of any of the following events: the failure of the Guarantor to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor Note Guarantee shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty cease to be in full force and effect (other than in accordance with its terms) prior terms for any reason except pursuant to the indefeasible terms of this Indenture governing the release of Note Guarantees or the satisfaction in full of all the obligations of Seller hereunder; thereunder or the shall be declared invalid or unenforceable other than as contemplated by its terms, or any Guarantor shall repudiate, disaffirmdeny or disaffirm any of its obligations thereunder; or
(6) the Company, disclaimFMCH, the Issuer or reject, in whole any of the Company’s Material Subsidiaries pursuant to or in part, or challenge within the validity meaning of any Guaranty; Bankruptcy Law:
(a) commences negotiations with any one or more of its creditors with respect a view to any outstanding Letter the general readjustment or rescheduling of Credit provided its indebtedness or makes a general assignment for the benefit of Buyer that or a composition with its creditors or, for any of the reasons set out in Sections 17-19 of the German Insolvency Code (Insolvenzordnung), files for insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or the board of directors (Geschäftsführer) is required by law to file for insolvency, a creditor files for the opening of insolvency proceedings and such filing is not then required under this Agreement frivolous and not dismissed within a period of one month by the competent insolvency court, or the competent court takes any of the actions set out in Section 21 of the German Insolvenzordnung or a competent court institutes insolvency proceedings (Eröffnung des Insolvenzverfahrens) or denies a petition for commencement of insolvency proceeding by reason of insufficient assets,
(b) commences a voluntary case,
(c) consents to be canceled the entry of an order for relief against it in an involuntary case,
(d) consents to the appointment of a custodian of it or returned, the failure by Seller to provide for all or substantially all of its property,
(e) makes a general assignment for the benefit of Buyer either its creditors, or
(1f) cashtakes any corporate action to authorize or effect any of the foregoing. A default under clause (3) of this Section 6.1 will not constitute an Event of Default unless the Trustee or Holders of 25% in principal amount of the outstanding Notes notify the Issuer and the Company of such default and such default is not cured within the time specified in clause (3). A default under clause (4) of this Section 6.1 will not constitute an Event of Default under this Indenture unless the Trustee, or (2) a substitute Letter of Credit from a different issuer meeting subject to the criteria limitations set forth in the definition Section 7.2(a), or holders of Letter of Credit, 25% in each case, in the principal amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit Notes shall fail to meet have notified the definition of Qualified Issuer; the issuer Issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; such Letter of Credit fails or ceases to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty (30) days prior to the expiration of the outstanding Letter of Creditdefault.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
1Events of Default. An Notwithstanding any cure periods described below, the Borrower shall promptly notify Lender in writing when the Borrower obtains knowledge of the occurrence of any default specified below. Regardless of whether the Borrower has given the required notice, the occurrence of one or more of the following will constitute an “Event of Default” shall mean, with respect under this Agreement:
8.1.1. 1Borrower fails to pay any principal of or installment of interest on the Subordinated Note when due after a Party (the “Defaulting Party”) that is subject 30-day grace period; or
8.1.1. 2Borrower fails to the Event of Default the occurrence of any of the following: the failure by such Party to makepay, when due, any payment required pursuant amount payable under this Agreement, the Subordinated Note (other than principal or interest) or any other Transaction Document, and such failure continues for a period of ten Business Days after knowledge thereof by Borrower; or
8.1.1. 3Borrower fails to materially keep or perform any of its agreements, undertakings, obligations, covenants or conditions under this Agreement not expressly referred to in another clause of this Section 8.1.1 and such failure is not remedied within ten (10) Business Days reasonably susceptible of cure and continues for a period of thirty days after Notice thereofknowledge thereof by Borrower provided, however, Borrower shall have an additional 60 days if such failure is reasonably susceptible of cure and Borrower is making diligent efforts to cure; any representation or
8.1.1. 4Any material default or warranty made by such Party herein is false or misleading breach in any material respect when made or when deemed made or repeatedby Borrower of any representation, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional periodwarranty, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); the failure by such Party to perform any material covenant or obligation agreement set forth in this Agreement (except to the extent constituting a separate Event Sections 4 through 7, inclusive, herein occurs and, if reasonably susceptible of Default set forth in this Section 11.1cure, is not cured within 30 days thereof; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii)provided, the exclusive remedies for which are set forth in Section 4.8) and however, Borrower shall have an additional 60 days if such failure is not remedied within thirty (30) days after Notice thereof (reasonably susceptible of cure and Borrower is making diligent efforts to cure; or
8.1.1. 5Any order or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party decree is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); such Party becomes Bankrupt; such Party assigns entered by any court of competent jurisdiction directly or indirectly enjoining or prohibiting Borrower from performing any of its obligations under this Agreement or any of the Transaction Documents, and such order or decree is not vacated, and the proceedings out of which such order or decree arose are not dismissed, within 120 days after the granting of such decree or order; or
8.1.1. 6Final judgment or judgments for the payment of no less than $2,000,000 in the aggregate is or are outstanding against Borrower or against any of its rights hereunder other property or assets, and any one or more of such judgments equal to no less than $2,000,000 in compliance with the aggregate has remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of 60 days from the date of its entry; or
8.1.1. 7Borrower or the Bank Subsidiary is notified that it is considered an institution in “troubled condition” within the meaning of 12 U.S.C. Section 14.2 or 14.3, as appropriate1831i and the regulations promulgated thereunder; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at
8.1.1. 8Following the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. with respect to Seller as the Defaulting Party, the occurrence expiration of any of the following: if at any timegrace period applicable thereto, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (90) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty (120) days of the Guaranteed Construction Start Date; Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, Borrower or any portion thereof, during the Delivery Term Subsidiary of Borrower continues to any party other than Buyer except as expressly permitted under this Agreement; if, be in default in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) payment of the Expected Energy amount for such period, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum; principal or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either interest for any reason other than to satisfy a Damage Payment or a Termination Payment; with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each caseobligation, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence performance of any other term, condition or covenant contained in any agreement (including, without limitation, an agreement in connection with the acquisition of capital equipment on a title retention or net lease basis, but excluding any Transaction Document) under which any such obligation is created the following events: effect of which default is to cause or permit the failure holder of the Guarantor such obligation to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor shall fail cause such obligation to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) become due prior to its stated maturity if the indefeasible satisfaction aggregate amount that becomes due in such manner is in excess of all obligations of Seller hereunder$2,000,000; or the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty; or with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit shall fail to meet the definition of Qualified Issuer; the issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; such Letter of Credit fails or ceases to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty (30) days prior to the expiration of the outstanding Letter of Credit.or
Appears in 1 contract
Sources: Subordinated Note Purchase Agreement (Alerus Financial Corp)
1Events of Default. An “Event (a) Notwithstanding any other provision of Default” shall meanthis Agreement, with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following: following shall constitute an “Event of Default”:
(i) Any Transaction Party fails to make payment when due (A) under Article 8, Article 17, or Section 15.7 of this Agreement, Article 9 of the failure Supply and Offtake Agreement, Section 7 of the Financing Agreement, or any Company Purchase Agreement, within one (1) Business Day after a written demand therefor (it being understood and agreed that any invoice issued by ▇▇▇▇ in accordance with the terms hereof shall constitute such Party to make, when due, written demand) or (B) under any payment required pursuant to this Agreement and such failure is not remedied other provision hereof or of any other Transaction Document within ten three (103) Business Days after Notice thereofthe date when due (provided that, notwithstanding the foregoing, a Default under clause (i)(A) or (i)(B) above shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable the Transaction Party to make the payment when due; and (iii) the payment is made within one (1) Business Day of such Transaction Party’s receipt of written notice of its failure to pay); or
(ii) Other than a default described in Section 16.1(a)(i), 16.1(a)(iii), or 16.1(a)(x), any Transaction Party (or, if applicable, any Affiliate of such Transaction Party that is party to a Transaction Document) fails to perform any material obligation or covenant under this Agreement or any other Transaction Document, which is not cured to the reasonable satisfaction of ▇▇▇▇ (in its reasonable discretion) within fifteen (15) days after the date that such Transaction Party receives written notice that such obligation or covenant has not been performed; or
(iii) Any Transaction Party (or, if applicable, any Affiliate of such Transaction Party that is party to a Transaction Document) breaches any material representation or material warranty made or repeated or deemed to have been made or repeated by such Transaction Party, or any such representation or warranty made by such Party herein is false proves to have been incorrect or misleading in any material respect when made or when repeated or deemed to have been made or repeatedrepeated under any Transaction Document; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of ▇▇▇▇ within fifteen (15) days after the date that such Party receives notice that corrective action is needed; or 4161-8074-0173.23
(iv) Any Company Entity becomes Bankrupt or otherwise subject to any Insolvency or Liquidation Proceeding; or
(v) Any Company Entity or any of its Restricted Subsidiaries (A) defaults under a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of obligations under, or any early termination of, such Specified Transaction in an amount in excess of $500,000, (B) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default continues for at least three (3) Business Days if there is no applicable notice requirement or grace period), in each case in an amount (I) in excess of $500,000 and such default amount is not remedied paid in full within one (1) Business Day or (II) less than or equal to $500,000 and such amount is not paid in full within ten (10) Business Days or (C) disaffirms, disclaims, repudiates or rejects, in whole or in part, a Specified Transaction (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); or any Company Entity or any Restricted Subsidiary of such Company Entity that is party to any credit support document provided pursuant hereto or in connection herewith, disaffirms, disclaims, repudiates or rejects, in whole or in part, such credit support document or its obligaitons thereunder; or
(vi) An ISDA Master Agreement Termination Event occurs with respect to any Company Entity or any of its Restricted Subsidiaries which results in (A) a payment obligation of such Company Entity or such Restricted Subsidiary in excess of $500,000 and such amount is not paid in full within one (1) Business Day or (B) a payment obligation of such Company Entity or such Restricted Subsidiaries that is less than or equal to $500,000 and such amount is not paid in full within ten (10) Business Days; or
(vii) A Change of Control occurs; or
(viii) one or more judgments shall be entered against any Company Entity or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days after Notice thereof (during which execution shall not be effectively stayed by reason of a pending appeal or otherwise, or such longer additional periodjudgment shall not have been satisfied, vacated or bonded pending appeal, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Transaction Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $50,000,000 or (ii) is for injunctive or other non-monetary relief and would reasonably be expected to result in a Material Adverse Effect or
(ix) Any Company Entity (A) fails to perform or comply with, in any material respect, its obligations (after giving effect to any grace periods applicable thereto) under or maintain, under its terms, any Material Contract (other than a Specified Material Contract), and (B) fails to perform or comply with, in any material respect, its obligations (after giving effect to any grace periods applicable thereto) under any Specified Material Contract and, within five (5) Business Days thereof, has not consummated a Material Contract Cure Event; or
(x) Any Company Entity fails to exceed an additional sixty perform or observe any term, covenant or agreement contained in any of Section 7.1 of the Financing Agreement, Section 15.1(f), Section 15.2(c)(i), Section 15.3(a)(i), Section 15.3(a)(ii), Section 15.3(b)(iii) and such failure continutes for fifteen (6015) days, if the Defaulting Party is unable to remedy Section 15.3 (other than Section 15.3(c)(i)) and 4161-8074-0173.23 such default within such initial failure continues for a period of thirty (30) days period despite diligently seeking a curedays, Section 15.3(c)(i); the failure by such Party to perform any material covenant or obligation set forth in this Agreement , Section 15.3(e) (except with respect only to the extent constituting a separate existence or good standing of any Company Entity or its Restricted Subsidairy in its jurisdiction of organization), Section 15.3(g) (A) as such Section relates to insurance with respect to Collateral or (B) as such Section relates to insurance with respect to Property other than Collateral and such failure continues for five (5) days, Section 15.3(j)(ii) or (iii) (A) if another Event of Default set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii), the exclusive remedies for which are set forth in Section 4.8) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); such Party becomes Bankrupt; such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, exists at the time of such consolidationfailure or (B) if no other Event of Default exists at the time of such failure, amalgamationand such failure continues for ten (10) days, merger Section 15.3(k), Section 15.3(s), Section 15.4, Section 15.5, Section 15.6, Section 15.7, Article 18, or transferany provision of the MLP Parent Guaranty; or
(i) Any Company Entity or Restricted Subsidiary (A) fails to make any payment when due after giving effect to any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the resultingeffect of which default or other event is to cause, surviving or transferee entity fails to assume all permit the obligations holder or holders of such Party Indebtedness or the beneficiary or beneficiaries of such Guarantee (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 be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; (ii) there occurs under this Agreement any Swap Contract (other than any Swap Contract described in clauses (v) or (vi) above) an early termination date (as used or defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which it any Company Entity or its predecessor was a Restricted Subsidiary is the defaulting party (as used or defined in such Swap Contract) or (B) any termination event (as so used or defined) under such Swap Contract as to which any Company Entity or any Restricted Subsidiary is an affected party (as so used or defined) and, in either event, the Swap Termination Value owed by operation such Company Entity or such Subsidiary as a result thereof is (in the aggregate and together with the Swap Termination Value owed, if any, by all other Company Entities or Restricted Subsidiaries) greater than $50,000,000; or (iii) there occurs an event of Law default as such term is used or pursuant defined in any Senior Notes Indenture or the Senior Secured Notes Indenture; or
(xii) The occurrence of one or more ERISA Events that have had, or could reasonably be expected to an agreement result in liability which would reasonably satisfactory be expected to have, individually or in the aggregate, a Material Adverse Effect; or
(xiii) The Company or Calumet Refining, as applicable, Disposes of any (A) material portion of the Refinery, any Refinery and Terminal Assets or any Storage Facilities or (B) any Included Locations.
(b) Notwithstanding any other Party. with respect to Seller as the Defaulting Partyprovision of this Agreement, the occurrence of any of the following: if at any time, Seller delivers following shall constitute an “▇▇▇▇ EoD”:
(i) ▇▇▇▇ fails to make payment when due (A) under Article 8 or attempts to deliver electric energy to the Delivery Point for sale under Article 17 of this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (90) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty (1201) days Business Day after the written demand therefor or (B) under 4161-8074-0173.23 any other provision hereof or of the Guaranteed Construction Start Date; Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, or any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted under this Agreement; if, in any consecutive six Transaction Document within three (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the Expected Energy amount for such period, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (103) Business Days after Notice from Buyerthe date when due (provided that, notwithstanding the foregoing, a legitimate reason for Default under clause (i)(A) or (i)(B) above shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable ▇▇▇▇ to make the payment when due; and (iii) the payment is made within one (1) Business Day of ▇▇▇▇’▇ receipt of written notice of its failure to meet pay); or
(ii) Other than a default described in Section 16.1(b)(i) or 16.1(b)(iii), ▇▇▇▇ fails to perform any of its material obligations or covenants under this Agreement or any other Transaction Document, which is not cured to the ten percent reasonable satisfaction the Company (10%in its reasonable discretion) minimumwithin fifteen (15) days after the date that ▇▇▇▇ receives written notice that such obligation or covenant has not been performed; or
(iii) ▇▇▇▇ (or, if applicable, any Affiliate of ▇▇▇▇ that is party to a Transaction Document) breaches any material representation or material warranty made or repeated or deemed to have been made or repeated by such Person, or any such representation or warranty proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated under any Transaction Document; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the Transaction Parties within fifteen (y15) deliver days after the date that ▇▇▇▇ receives notice that corrective action is needed; or
(iv) ▇▇▇▇ becomes Bankrupt or otherwise subject to Buyer within ten any Insolvency or Liquidation Proceeding; or
(10v) ▇▇▇▇ (A) defaults under a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of obligations under, or any early termination of, that Specified Transaction, (B) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default continues for at least three (3) Business Days after Notice from Buyer a plan if there is no applicable notice requirement or report developed by Seller that describes the cause of the failure to meet the ten percent (10%grace period) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment; with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3C) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Creditdisaffirms, in each casedisclaims, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the failure of the Guarantor to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Seller hereunder; repudiates or the Guarantor shall repudiate, disaffirm, disclaim, or rejectrejects, in whole or in part, a Specified Transaction (or challenge the validity of such action is taken by any Guarantyperson or entity appointed or empowered to operate it or act on its behalf); or with respect ▇▇▇▇ or any Affiliate of ▇▇▇▇ that is a party to any outstanding Letter of Credit credit support document provided for the benefit of Buyer that is not then required under this Agreement to be canceled pursuant hereto or returnedin connection herewith disaffirms, the failure by Seller to provide for the benefit of Buyer either (1) cashdisclaims, repudiates or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit shall fail to meet the definition of Qualified Issuer; the issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or rejectrejects, in whole or in part, such credit support document or challenge the validity of, such Letter of Creditits obligations thereunder; such Letter of Credit fails or ceases or
(vi) An ISDA Master Agreement Termination Event occurs with respect to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty (30) days prior to the expiration of the outstanding Letter of Credit▇▇▇▇.
Appears in 1 contract
Sources: Monetization Master Agreement (Calumet Specialty Products Partners, L.P.)
1Events of Default. An The occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default” and Credit Parties shall mean, with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following: the failure by such Party to make, when due, any payment required pursuant to thereupon be in default under this Agreement and each of the other Financing Documents:
(a) Borrower fails to (i) make any payment of principal or interest on any Credit Extension on its due date, or (ii) pay any other Obligations within three (3) Business Days after such failure Obligations are due and payable (which three (3) Business Day grace period shall not apply to payments due on the Maturity Date or the date of acceleration pursuant to Section 9.2 hereof);
(b) Any Credit Party defaults in the performance of or compliance with any term contained in this Agreement or in any other Financing Document (other than occurrences described in other provisions of this Section 10.1 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) and such default is not remedied by the Credit Party or waived by Agent within ten (10) Business Days days after Notice thereof; the earlier of (i) the date of receipt by Borrower of notice from Agent or Required Lenders of such default, or (ii) the date an officer of such Credit Party becomes aware of such default;
(c) Any Credit Party defaults in the performance of or compliance with any representation term contained in Section 6.1, 6.2, 6.5(a), 6.6, 6.8 or 6.10 or Article 7;
(d) Any representation, warranty or certification made by such any Credit Party herein in any Financing Document or in any document delivered pursuant to any Financing Document is false or misleading in any material respect when made (or deemed made);
(e) (i) the Dextenza Incept License shall be terminated by a third party or parties party thereto prior to the expiration thereof, or there is a loss of a material right of a Credit Party under the Dextenza Incept License, (ii) (A) any Credit Party or any Subsidiary fails to make (after any applicable grace period) any payment when deemed made due (whether due because of scheduled maturity, required prepayment provisions, acceleration, demand or repeatedotherwise) on any Indebtedness (other than the Obligations) of such Credit Party or such Subsidiary having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than One Million Dollars ($1,000,000) (“Material Indebtedness”), (B) any other event shall occur or condition shall exist under any contractual obligation relating to any such Material Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of (without regard to any subordination terms with respect thereto), the maturity of such Material Indebtedness or (C) any such Material Indebtedness shall become or be declared to be due and payable, or be required to be prepaid, redeemed, defeased or repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; provided that this clause (e) shall not apply to (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (B) any conversion, (iii) any Credit Party (or any Subsidiary, if applicable) defaults under any Permitted Convertible Document, if the effect of such event or condition is to accelerate, or to permit the acceleration of (without regard to any subordination terms with respect thereto), the maturity of such Permitted Convertible Document, or any event occurs that requires the prepayment or redemption by a Credit Party (or any Subsidiary, if applicable) of any Permitted Convertible Indebtedness, or (iv) Borrower makes any payment on account of any Indebtedness that has been contractually subordinated to any of the Obligations, other than payments specifically permitted by the terms of such subordination;
(f) (i) any Credit Party or any Subsidiary shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally, shall make a general assignment for the benefit of creditors, or shall cease doing business as a going concern, (ii) any proceeding shall be instituted by or against any Credit Party or any Subsidiary seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any similar order, in each case 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 custodian, receiver, trustee, conservator, liquidating agent, liquidator, other similar official or other official with similar powers, in each case for it or for any substantial part of its property and, in the case of any such proceedings instituted against (but not by or with the consent of) such Credit Party or such Subsidiary, either such proceedings shall remain undismissed or unstayed for a period of thirty (30) days or more or any action sought in such proceedings shall occur or (iii) any Credit Party or any Subsidiary shall take any corporate or similar action or any other action to authorize any action described in clause (i) or (ii) above;
(g) a notice of lien, levy, or assessment is filed against any assets of a Credit Party or a Subsidiary with a fair value in excess of $1,000,000 by any government agency, and such default is not remedied within discharged or stayed (whether through the posting of a bond or otherwise) prior to the earlier to occur of thirty (30) days after Notice the occurrence thereof (or such longer additional periodaction becoming effective;
(h) one or more judgments or orders for the payment of money (not paid or fully covered by insurance and as to which the relevant insurance company has acknowledged coverage in writing) aggregating in excess of $1,000,000 shall be rendered against any or all Credit Parties or Subsidiaries and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders, not to exceed an additional sixty or (60B) days, if the Defaulting Party is unable to remedy such default within such initial there shall be any period of thirty (30) consecutive days period despite diligently seeking during which (x) a cure)stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not be in effect or (y) such judgements or orders shall remain unsatisfied, undischarged or unvacated;
(i) any Lien created by any of the Financing Documents shall at any time fail to constitute a valid and perfected Lien on all of the Collateral purported to be encumbered thereby, subject to no prior or equal Lien except Permitted Liens, or any Credit Party (or any Subsidiary) shall so assert; any provision of any Financing Document shall fail to be valid and binding on, or enforceable against, a Credit Party, or any Credit Party shall so assert;
(j) A Change in Control occurs;
(k) Any Required Permit shall have been (i) revoked, rescinded, suspended, modified in a materially adverse manner or not renewed in the failure Ordinary Course of Business for a full term, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of such Required Permit or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or non-renewal (A) causes, or could reasonably be expected to cause, a Material Adverse Change, or (B) materially adversely affects the legal qualifications of any Credit Party to perform hold such Required Permit in any material covenant applicable jurisdiction and such revocation, rescission, suspension, modification or obligation set forth non-renewal could reasonably be expected to affect the status of or legal qualifications of any Credit Party to hold any Required Permit in any other jurisdiction in such a manner as could reasonably be expected to cause a Material Adverse Change; or
(l) The occurrence of a Material Adverse Change. All cure periods provided for in this Agreement (except Section 9.1 shall run concurrently with any cure period provided for in any applicable Financing Documents under which the default occurred. The provisions above with respect to the extent constituting a separate Event Events of Default set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iiiclauses (a), the exclusive remedies for which are set forth in Section 4.8(c) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure); such Party becomes Bankrupt; such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. but solely with respect to Seller as the Defaulting Party, the occurrence of any of the following: if at any time, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (90) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty (120) days of the Guaranteed Construction Start Date; Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, or any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted under this Agreement; if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the Expected Energy amount for such period, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum; or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning defaults in the second Contract Yearperformance of or compliance with any term contained in Section 6.2(d), the Adjusted Energy Production amount is not at least fifty percent Section 7.1(c) (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment; but solely with respect to any Guaranty provided for the benefit licenses of Buyer, the failure by Seller Material Dextenza Intellectual Property) and Section 7.11 (but solely with respect to provide for the benefit of Buyer either (1) cashMaterial Agreements related to Dextenza), (2f) a replacement Guaranty from a different Guarantor meeting the criteria set forth and (i) (but solely with respect to Liens granted under Section 4.1(c)), shall survive payment in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice full of the occurrence of any of the following events: the failure of the Guarantor to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty to be in full force and effect Obligations (other than in accordance with its the MoIC Hurdle Amount and inchoate indemnity obligations and any other obligations which, by their terms) prior , are to survive the indefeasible satisfaction termination of all obligations of Seller hereunder; or the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty; or with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit shall fail to meet the definition of Qualified Issuer; the issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; such Letter of Credit fails or ceases to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, ) and in no event less than thirty (30) days prior to continue until such time the expiration of the outstanding Letter of Creditremaining MoIC Hurdle Amount has been paid.
Appears in 1 contract
Sources: Credit and Security Agreement (Ocular Therapeutix, Inc)
1Events of Default. An “Event of Default” shall mean, with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following: the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within ten (10) Business Days after Notice thereof; any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional sixty (60) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure)thereof; the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default set forth in this Section 11.1; and except for failures related to the Adjusted Energy Production that do not trigger the provisions of Section 11.1(b)(iii), the exclusive remedies for which are set forth in Section 4.8Default) and such failure is not remedied within thirty (30) days after Notice thereof (or such longer additional period, not to exceed an additional ninety (90) days, if the Defaulting Party is unable to remedy such default within such initial thirty (30) days period despite diligently seeking a cure)thereof; such Party becomes Bankrupt; such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as appropriate; or such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. with respect to Seller as the Defaulting Party, the occurrence of any of the following: if at any time, Seller delivers or attempts to deliver electric energy to the Delivery Point for sale under this Agreement that was not generated by the Facility; the failure by Seller to achieve Commercial Operation within ninety (900) days following the Guaranteed Commercial Operation Date; if not remedied within ten (10) days after Notice thereof, the failure by Seller to deliver a Remedial Action Plan required under Section 2.4 that demonstrates a reasonable plan for completing the Facility by the Guaranteed Commercial Operation Date; the failure by Seller to achieve the Construction Start Date within one hundred twenty eighty (120180) days of the Guaranteed Construction Start Date; Seller sells, assigns, or otherwise transfers, or commits to sell, assign, or otherwise transfer, the Product, or any portion thereof, during the Delivery Term to any party other than Buyer except as expressly permitted under this Agreement; Date if, in any consecutive six (6) month period, the Adjusted Energy Production amount (calculated in accordance with Exhibit G) for such period is not at least ten percent (10%) of the Expected Energy amount for such periodthe current Contract Year, and Seller fails to either (x) demonstrate to Buyer’s reasonable satisfaction, within ten (10) Business Days after Notice from Buyer, a legitimate reason for the failure to meet the ten percent (10%) minimum; or (y) deliver to Buyer within ten (10) Business Days after Notice from Buyer a plan or report developed by Seller that describes the cause of the failure to meet the ten percent (10%) and the actions that Seller has taken, is taking, or proposes to take in an effort to cure such condition along with the written confirmation of a Licensed Professional Engineer that such plan or report is in accordance with Prudent Industry Practices and capable of cure within a reasonable period of time, not to exceed one hundred eighty (180) days; if, beginning in the second Contract Year, the Adjusted Energy Production amount is not at least fifty percent (50%) of the Expected Energy amount in any Contract Year; if, in any Performance Measurement Period during the Delivery Term, the Adjusted Energy Production amount is not at least sixty-five percent (65%) of the Expected Energy amount; failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8 after Notice and expiration of the cure periods set forth therein, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment or a Termination Payment; with respect to any Guaranty provided for the benefit of Buyer, the failure by Seller to provide for the benefit of Buyer either (1) cash, (2) a replacement Guaranty from a different Guarantor meeting the criteria set forth in the definition of Guarantor, or (3) a replacement Letter of Credit from an issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: if any representation or warranty made by the Guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof; the failure of the Guarantor to make any payment required under any Guaranty; the Guarantor becomes Bankrupt; the Guarantor shall fail to meet the criteria for an acceptable Guarantor as set forth in the definition of Guarantor; the failure of the Guaranty to be in full force and effect (other than in accordance with its terms) prior to the indefeasible satisfaction of all obligations of Seller hereunder; or the Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any Guaranty; or with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within ten (10) Business Days after Seller receives Notice of the occurrence of any of the following events: the issuer of the outstanding Letter of Credit shall fail to meet the definition of Qualified Issuer; the issuer of such Letter of Credit becomes Bankrupt; the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; such Letter of Credit fails or ceases to be in full force and effect at any time; or Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than thirty sixty (3060) days prior to the expiration of the outstanding Letter of Credit.
Appears in 1 contract
Sources: Renewable Power Purchase Agreement