Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then: (i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and (ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default. (b) Paragraph (a) above shall not apply with respect to any Clean-up Default that: (i) is not capable of remedy; (ii) is capable of remedy but reasonable steps are not being taken to remedy it; (iii) has been procured by or approved by the Company; or (iv) could reasonably be expected to have a Material Adverse Effect. (c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties). (d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company Holdco shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the CompanyHoldco; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary..
Appears in 1 contract
Sources: Unsecured NGN Term Facility Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during During the Clean-up Period that or the Additional Acquisition Clean-up Period (as applicable), any breach of a representation or an undertaking or any Default which solely arises with respect to (in the case of the Clean-up Period) any Target Group Member or (in the case of the Additional Acquisition Clean-up Period) a newly acquired Group Member acquired from a third party pursuant to the applicable Permitted Acquisition, shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up an Event of Default that:
or allow acceleration, provided that such breach or default (i) is not capable of remedy;
being remedied within the Clean-up Period or the Additional Acquisition Clean-up Period (as applicable) and reasonable steps are being taken to cure it and further (ii) is capable of remedy but reasonable steps are does not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
Effect and was not procured or approved by an Obligor, (ciii) If the relevant circumstances are continuing on or after does not exist at the end of the Clean-up Period, there shall be a breach of representation Period or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Additional Acquisition Clean-up Default is continuing Period, as applicable, and (iv) does not relate to:
1. defaults relating to (i) breach of undertakings listed in relation 2 below, (ii) misrepresentation for representations listed in 3 below, (iii) insolvency and insolvency related events, (iv) unlawfulness/invalidity/repudiation of Finance Documents and (v) change of ownership;
2. breaches of undertakings relating to a Material Subsidiary(i) authorisations (for the Facility), during (ii) ranking, (iii) financial assistance, (iv) Guarantors, Transaction Security and further assurance, (v) sanctions, anti- money laundering, anti-corruption and anti-terrorism, (vi) the period until Merger Documents, (vii) the earlier Shareholder Documents, (viii) the DSRA and (ix) conditions subsequent; and
3. misrepresentations for representations on (i) status, (ii) binding obligations, (iii) non-conflict, (iv) power and authority, (v) validity and admissibility in evidence, (vi) governing law and enforcement, (vii) insolvency or insolvency proceedings, (viii) sanctions, anti-money laundering, anti-corruption and anti-terrorism, (ix) ranking, (x) ownership of shares and assets charged under Transaction Security Documents, (xi) shares subject to Transaction Security Documents, (xii) Merger Documents and (xiii) the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material SubsidiaryShareholder Documents.
Appears in 1 contract
Sources: Commitment Letter (Chen Xiangyu)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing Clean-Up Period (however defined) of that Permitted Acquisition relating to the date falling 90 days thereafter Acquisition or a Future Acquisition), any event or circumstance which constitutes:
(the “i) any breach of a Clean-up Period”)Up Representation or a Clean-Up Undertaking; or
(ii) any Event of Default constituting a Clean-Up Default, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior will be deemed not to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of representation or warranty, a breach of covenant or covenant, a Default or an Event of Default (as the case may be) with respect to (in each case, a “the case of the Clean-up Default”Up Period relating to the Acquisition) thenany Target Group Member or (in the case of the Clean-Up Period relating to a Future Acquisition) any member of the Future Target Group in respect of such Future Acquisition if:
(iA) promptly upon it would have been (if it were not for this provision) a breach of representation or warranty, a breach of covenant, a Default or an Event of Default only by reason of circumstances relating exclusively to such Target Group Member or, as the case may be, such member of the Future Target Group (or any obligation to procure or ensure in relation to such Target Group Member or, as the case may be, such member of the Future Target Group);
(B) it is capable of remedy on or before the expiry of such Clean-Up Period and reasonable steps are being taken to remedy it;
(C) the circumstances giving rise to it have not been procured by or approved by the Parent, Borrower or any other Group Member; and
(D) it would not reasonably be expected to have a Material Adverse Effect, provided that if such event or circumstance is continuing on or after the expiry of such Clean-Up Period, there shall be a breach of representation or warranty, breach of covenant, Default or Event of Default, as the case may be notwithstanding the above (and the rights and remedies of the Finance Parties in respect thereof shall be fully preserved).
(b) If, on or before the expiry of a Clean-Up Period relating to the Acquisition or a Future Acquisition), any event or circumstance has occurred with respect to (in the case of the Clean-Up Period relating to the Acquisition) any Target Group Member or (in the case of the Clean-Up Period relating to a Future Acquisition) any member of the Future Target Group in respect of such Future Acquisition which would constitute a Clean-Up Default have occurred, as soon as reasonably practicable after becoming aware of its occurrenceoccurrence or existence, the Company Borrower shall notify the Facility Agent of that Clean-up Up Default and the related such event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during During the Clean-up Period that or the Additional Acquisition Clean-up Period (as applicable), any breach of a representation or an undertaking or any Default which solely arises with respect to (in the case of the Clean-up Period) any Target Group Member or (in the case of the Additional Acquisition Clean-up Period) a newly acquired Group Member acquired from a third party pursuant to the applicable Permitted Acquisition, shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up an Event of Default that:
or allow acceleration, provided that such breach or default (i) is not capable of remedy;
being remedied within the Clean-up Period or the Additional Acquisition Clean-up Period (as applicable) and reasonable steps are being taken to cure it and further (ii) is capable of remedy but reasonable steps are does not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could have and would not reasonably be expected to have a Material Adverse Effect.
Effect and was not procured or approved by an Obligor, (ciii) If the relevant circumstances are continuing on or after does not exist at the end of the Clean-up Period, there shall be a breach of representation Period or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Additional Acquisition Clean-up Default is continuing Period, as applicable, and (iv) does not relate to:
1. defaults relating to (i) Financial Covenants, (ii) breach of undertakings listed in relation 2 below, (iii) misrepresentation for representations listed in 3 below, (iv) insolvency and insolvency related events, (v) unlawfulness/invalidity/repudiation of Finance Documents and (vi) change of ownership;
2. breaches of undertakings relating to a Material Subsidiary(i) authorisations (for the Facility), during (ii) ranking, (iii) financial assistance, (iv) Guarantors, Transaction Security and further assurance, (v) sanctions, anti- money laundering, anti-corruption and anti-terrorism, (vi) the period until Merger Documents, (vii) the earlier Shareholder Documents, (viii) the DSRA and (ix) conditions subsequent; and
3. misrepresentations for representations on (i) status, (ii) binding obligations, (iii) non-conflict, (iv) power and authority, (v) validity and admissibility in evidence, (vi) governing law and enforcement, (vii) insolvency or insolvency proceedings, (viii) sanctions, anti-money laundering, anti-corruption and anti-terrorism , (ix) ranking, (x) ownership of shares and assets charged under Transaction Security Documents, (xi) shares subject to Transaction Security Documents, (xii) Merger Documents and (xiii) the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material SubsidiaryShareholder Documents.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to Closing Date and expiring 120 days after the date falling 90 days thereafter (the “Clean-up Period”)Closing Date, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject member of the relevant Permitted Acquisition Target Group would constitute:
(and which matter or circumstance exists prior to or on (but not afteri) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of a representation or warranty, warranty made in Clause 22 (Representations); or
(ii) a breach of covenant an undertaking in Clause 23 (Information undertakings) or Clause 25 (General undertakings); or
(iii) a Default or an Event of Default,
(in each case, a “Clean-up Relevant Default”) then:
(iA) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the Facility Agent shall not be entitled to give any notice under Clause 26.18 (Acceleration) with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of:
(i) the date immediately after the end of the Clean-up Period; and
(ii) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) it is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the Facility Agent giving notice to the Company or the Company becoming aware of the occurrence that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectCompany or Bidco.
(c) If For the relevant circumstances are continuing on avoidance of doubt, subject to Clause 4.3 (Certain Funds), paragraph (a)(B) above shall not restrict the Facility Agent’s right to give any notice under Clause 26.18 (Acceleration) with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Senior Facilities Agreement (Nordic Telephone CO ApS)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary..
Appears in 1 contract
Sources: Facility Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to the date falling Closing Date and expiring 90 days thereafter after the Closing Date (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of the Company or any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) its Subsidiaries would constitute (i) a breach of a representation or warranty, warranty made in Section 8; or (ii) a breach of covenant an undertaking in Section 9 or Section 10; or (iii) a Default or an Event of Default, (in each case, a “Clean-up Relevant Default”) then:
(iA) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Administrative Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph clause (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the Administrative Agent shall not be entitled to take any action under Section 11.1 with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of (1) the date immediately after the end of the Clean-up Period; and (2) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph Clause (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) the Relevant Default is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the Administrative Agent giving notice to the Company or the Company becoming aware of the occurrence of that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectCompany or Holdings.
(c) If For the relevant circumstances are continuing on avoidance of doubt, subject to Section 7.3, clause (a)(B) above shall not restrict the Administrative Agent’s right to take any action under Section 11.1 with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (NXP Manufacturing (Thailand) Co., Ltd.)
Clean-Up Period. (a) 24.18.1 Notwithstanding any other provision of any Finance Document, in respect of :
(a) any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject breach by a member of the relevant Permitted Acquisition Target Group of a representation under Clause 20 (and which matter or circumstance exists prior to or on Representations);
(but not afterb) the date any breach by a member of the closing Target Group of an undertaking given by the Target Group under Clause 23 (howsoever definedGeneral Undertakings); or
(c) any Event of Default by a member of the relevant Permitted Acquisition) would constitute Target Group, will be deemed not to be a breach of representation or warranty, a breach of covenant that undertaking or a an Event of Default (in each case, a “Clean-up Default”as the case may be) thenif:
(i) promptly upon becoming aware it would have been (if it were not for this provision) a breach of its occurrencerepresentation or warranty, a breach of undertaking or an Event of Default only by reason of circumstances relating exclusively to that member of the Company shall notify Target Group (or any obligation to procure or ensure in relation to a member of the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy itTarget Group); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) it does not relate to an Excluded Representation or an Excluded Event of Default;
(iii) it is capable of remedy but and reasonable steps are not being taken to remedy it;
(iiiiv) has it occurs and is remedied within 4 months of the Acquisition Date (the Clean-up Date);
(v) the circumstances giving rise to it have not been procured by or approved by the Company; orany Original Obligor;
(ivvi) could it does not prevent the granting of security over the Target Assets; and
(vii) it is not reasonably be expected likely to have a Material Adverse Effect.
(c) 24.18.2 If the relevant circumstances are continuing on or after the end of the Clean-up PeriodDate, there shall be a breach of representation or warranty, breach of covenant or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
24.18.3 In this Clause 24.18: Excluded Event of Default means an Event of Default under Clause 24.1 (dNon-payment), Clause 24.4 (Misrepresentation) If a Clean-up Default is continuing (but only in relation so far as it relates to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.an Excluded Representation); and
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect for the duration of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “applicable Clean-up Up Period”), if any matter breach of a representation or circumstance that exists exclusively in respect warranty, a breach of any entity which is covenant or undertaking, or a potential or actual Default or Event of Default (as the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior case may be) will be deemed not to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of representation or warranty, a breach of covenant or undertaking, or a potential or actual Default or Event of Default (as the case may be) and will not prevent a Borrower from requesting any Loan (in each case, a “case until after the end of the relevant Clean-up Default”Up Period) thenif:
(i) promptly upon becoming aware it would have been (if it were not for this provision) a breach of its occurrencerepresentation or warranty, a breach of covenant or undertaking, or a Default or Event of Default only by reason of circumstances relating to any member of the Company shall notify Group as at the Facility Agent Closing Date (or any obligation to procure or ensure in relation to a member of that Clean-up Default and the related event or circumstance (and Group as at the steps, if any, being taken to remedy itClosing Date); and
(ii) subject to paragraph in the case of any other Permitted Acquisition, it would have been (bif it were not for this provision) belowa breach of representation or warranty, during the Clean-up Period that Clean-up a breach of covenant or undertaking, or a Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect or Event of Default only by reason of circumstances relating to any Clean-up person (directly or indirectly) being the target of that Permitted Acquisition (or any obligation to procure or ensure in relation to such person), if and for so long as the circumstances giving rise to the relevant breach of representation or warranty, a breach of covenant or undertaking, or a Default thator Event of Default:
(iA) is not capable of remedy;
(ii) is are capable of remedy but or cure and, if the Company is aware of the relevant circumstances at the time, reasonable steps efforts are not being taken used to remedy or cure it;
(iiiB) has have not been procured by or approved by the Companyboard of directors (or equivalent body) of the Company (provided that it had actual knowledge thereof and that knowledge thereof does not equate to procurement or approval); orand
(ivC) could reasonably be expected to would not have a Material Adverse EffectEffect during the relevant Clean-Up Period.
(cb) If the relevant circumstances are continuing on or after the end last day of the Clean-up Up Period, there shall be a breach of representation or warranty, a breach of covenant or undertaking, or a Default or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, anything in respect of any Permitted Acquisition made after Section 7.01 or elsewhere in this Agreement to the date of this Agreementcontrary, during the period from the date of closing (however defined) of that Permitted Acquisition to Closing Date until the date falling 90 that is 60 days thereafter after the Closing Date (the “Clean-up Up Period”), if any breach of a covenant, inaccuracy of or inability to make a representation or warranty (other than a Specified Representation) or other Default or Event of Default by reason of any matter or circumstance that exists exclusively in respect of any entity which is the direct relating to GW Pharma or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior its subsidiaries will be deemed not to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of a covenant, an inaccuracy of or failure to make a representation or warranty, a breach of covenant warranty or a Default (in each case, a “Clean-up Default”) thenor Event of Default for all purposes hereunder so long as the circumstances giving rise thereto:
(i) promptly upon becoming aware do not have a Material Adverse Effect on the consolidated results of its occurrence, the Company shall notify the Facility Agent operations or financial condition of that Clean-up Default Parent and the related event or circumstance Subsidiaries (including GW Pharma and its subsidiaries) taken as a whole, such that Parent and the steps, if any, Subsidiaries (including GW Pharma and its subsidiaries) taken as a whole would be unable to perform the payment obligations under the Facilities;
(ii) were not knowingly procured or approved by ▇▇▇▇▇▇;
(iii) are capable of remedy and reasonable steps are being taken to remedy it)them; and
(iiiv) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall do not constitute a Defaultbreach of the covenants relating to the accession of Guarantors beyond thirty (30) days after the Closing Date (or, in the case of GW Pharma and its subsidiaries, beyond the GW Pharma Joinder Date).
(b) Paragraph For the avoidance of doubt, if any breach of a covenant, inaccuracy of or inability to make a representation or warranty or other Default or Event of Default shall be deemed to not exist due to Section 7.02(a), then it shall be deemed not to exist for purposes of Section 4.01 and Section 4.02 for so long as (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after in no event later than the end of the Clean-up Up Period, there ) it shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice deemed not to exist due to the rights and remedies provisions of the Finance PartiesSection 7.02(a).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance DocumentIn this Clause 30.12, in respect of any Permitted Acquisition made after the date of this Agreement, during Clean-Up Period means the period from the date of closing (however defined) of that Permitted Acquisition Date to the date falling 90 180 days thereafter after the Acquisition Date.
(b) If, during the “Clean-up Up Period”), if any matter event or circumstance that occurs or exists exclusively in solely with respect of any entity which is the direct or indirect subject to a member of the relevant Permitted Acquisition Target Group (and or solely with respect to any of their assets or liabilities) which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or constitutes a Default (in each case, other than to the extent the relevant event or circumstance constitutes a “Clean-up Default”Default under Clause 30.3 (Breach of other obligations) then:for failure to comply with Clause 28.7 (Subsidiary indebtedness)):
(i) the Companies must promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and fact, giving a reasonable description of the related relevant event or circumstance (and the steps, if any, being taken the relevant member of the Group proposes to take to remedy it); and
(ii) subject to except as set out in paragraph (bc) below, during the Clean-up Period Up Period, no Finance Party shall be entitled to take any of the actions or to give any notice referred to in Clause 30.11 (Acceleration), or to take any other action (or prevent any Utilisation), with respect to that Clean-up Default shall not constitute a Default.
(bc) Paragraph (ab)(ii) above shall not apply with respect to any Clean-up Default thatif:
(i) the event or circumstance giving rise to the Default was procured or approved by a member of the Group (other than a member of the Target Group) after the Acquisition Date;
(ii) the Default is not capable of remedy;
(iiiii) it would otherwise permit any Utilisation to be made by a member of the Group in respect of which any of the events or circumstances referred to in Clauses 30.5 (Cross acceleration) (other than to the extent the relevant event or circumstance has arisen as a result of the Acquisition), 30.6 (Insolvency), 30.7 (Creditors’ process) or 30.9 (Security enforceable) have occurred;
(iv) the Default is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by it or approved by the Companyevent or circumstance giving rise to the Event of Default; or
(ivv) could the Default would reasonably be expected to have a Material Adverse Effect.
(cd) If the relevant event or circumstances giving rise to the Event of Default are continuing on or after the end of the Clean-up Up Period, there nothing in this Clause 30.12 shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies prevent any Finance Party from taking any of the actions or from giving any notice referred to in Clause 30.11 (Acceleration), or from taking any other action which it is entitled to take under the Finance Parties)Documents, with respect to that Event of Default.
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Facility and Subscription Agreement (BHP Billiton PLC)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company Holdco shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the CompanyHoldco; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary..
Appears in 1 contract
Sources: Unsecured NGN Revolving Credit Facility Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to Closing Date and expiring 120 days after the date falling 90 days thereafter (the “Clean-up Period”)Closing Date, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject member of the relevant Permitted Acquisition Target Group would constitute:
(and which matter or circumstance exists prior to or on (but not afteri) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of a representation or warranty, warranty made in Clause 17 (Representations); or
(ii) a breach of covenant an undertaking in Clause 18 (Information undertakings) or Clause 20 (General undertakings); or
(iii) a Default or an Event of Default,
(in each case, a “Clean-up Relevant Default”) then:
(iA) promptly upon becoming aware of its occurrence, the Company Borrower shall notify the Bridge Facility Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the Bridge Facility Agent shall not be entitled to give any notice under Clause 21.15 (Acceleration) with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of:
(i) the date immediately after the end of the Clean-up Period; and
(ii) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) it is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the Bridge Facility Agent giving notice to the Borrower or the Borrower becoming aware of the occurrence that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectBorrower or Bidco.
(c) If For the relevant circumstances are continuing on avoidance of doubt subject to Clause 4.2 (Certain Funds), paragraph (a)(B) above shall not restrict the Bridge Facility Agent’s right to give any notice under Clause 21.15 (Acceleration) with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Bridge Facility Agreement (Nordic Telephone CO ApS)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect..
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Facility Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing Clean-Up Period (however defined) of that Permitted Acquisition relating to the date falling 90 days thereafter Acquisition or a Future Acquisition), any event or circumstance which constitutes:
(the “i) any breach of a Clean-up Period”)Up Representation or a Clean-Up Undertaking; or
(ii) any Event of Default constituting a Clean-Up Default, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior will be deemed not to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of representation or warranty, a breach of covenant or covenant, a Default or an Event of Default (as the case may be) with respect to (in each case, a “the case of the Clean-up Default”Up Period relating to the Acquisition) thenany Target Group Member or (in the case of the Clean-Up Period relating to a Future Acquisition) any member of the Future Target Group in respect of such Future Acquisition if:
(iA) promptly upon it would have been (if it were not for this provision) a breach of representation or warranty, a breach of covenant, a Default or an Event of Default only by reason of circumstances relating exclusively to such Target Group Member or, as the case may be, such member of the Future Target Group (or any obligation to procure or ensure in relation to such Target Group Member or, as the case may be, such member of the Future Target Group);
(B) it is capable of remedy on or before the expiry of such Clean-Up Period and reasonable steps are being taken to remedy it;
(C) the circumstances giving rise to it have not been procured by or approved by any Transaction Obligor, Holdco, the Parent, the Company or any other Group Member; and
(D) it would not reasonably be expected to have a Material Adverse Effect, provided that if such event or circumstance is continuing on or after the expiry of such Clean-Up Period, there shall be a breach of representation or warranty, breach of covenant, Default or Event of Default, as the case may be notwithstanding the above (and the rights and remedies of the Finance Parties in respect thereof shall be fully preserved).
(b) If, on or before the expiry of a Clean-Up Period relating to the Acquisition or a Future Acquisition), any event or circumstance has occurred with respect to (in the case of the Clean-Up Period relating to the Acquisition) any Target Group Member or (in the case of the Clean-Up Period relating to a Future Acquisition) any member of the Future Target Group in respect of such Future Acquisition which would constitute a Clean-Up Default have occurred, as soon as reasonably practicable after becoming aware of its occurrenceoccurrence or existence, the Company Borrower shall notify the Facility Agent of that Clean-up Up Default and the related such event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance DocumentIn this Clause, in respect of any Permitted Acquisition made after the date of this Agreement, during Clean-Up Period means the period from the date of closing (however defined) of that Permitted Acquisition Unconditional Date to the date falling 90 180 days thereafter after the Unconditional Date.
(b) If, during the “Clean-up Up Period”), if any matter event or circumstance that occurs or exists exclusively in solely with respect of any entity which is the direct or indirect subject to a member of the relevant Permitted Acquisition Target Group (and or solely with respect to any of their assets or liabilities) which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or constitutes a Default (in each case, other than to the extent the relevant event or circumstance constitutes a “Clean-up Default”Default under Clause 31.3 (Breach of other obligations) then:for failure to comply with Clause 28.7 (Subsidiary Indebtedness) or Clause 30 (Refinancing of Target Indebtedness)):
(i) the Companies must promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and fact, giving a reasonable description of the related relevant event or circumstance (and the steps, if any, being taken the relevant member of the Group proposes to take to remedy it); and
(ii) subject to except as set out in paragraph (bc) below, during the Clean-up Period Up Period, no Finance Party shall be entitled to take any of the actions or to give any notice referred to in Clause 31.11 (Acceleration), or to take any other action (or prevent any Utilisation), with respect to that Clean-up Default shall not constitute a Default.
(bc) Paragraph (ab)(ii) above shall not apply with respect to any Clean-up Default thatif:
(i) the event or circumstance giving rise to the Default was procured or approved by a member of the Group (other than a member of the Target Group) after the Unconditional Date;
(ii) the Default is not capable of remedy;
(iiiii) it would otherwise permit any Utilisation to be made by a member of the Group in respect of which any of the events or circumstances referred to in Clauses 31.5 (Cross acceleration) (other than to the extent the relevant event or circumstance has arisen as a result of the Acquisition), 31.6 (Insolvency), 31.7 (Creditors’ process) or 31.9 (Security enforceable) have occurred;
(iv) the Default is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by it or approved by the Companyevent or circumstance giving rise to the Event of Default; or
(ivv) could the Default would reasonably be expected to have a Material Adverse Effect.
(cd) If the relevant event or circumstances giving rise to the Event of Default are continuing on or after the end of the Clean-up Up Period, there nothing in this Clause 31.12 (Clean-Up Period) shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies prevent any Finance Party from taking any of the actions or from giving any notice referred to in Clause 31.11 (Acceleration), or from taking any other action which it is entitled to take under the Finance Parties)Documents, with respect to that Event of Default.
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect for the duration of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “applicable Clean-up Up Period”), if any matter breach of a representation or circumstance that exists exclusively in respect warranty, a breach of any entity which is covenant or undertaking, or a potential or actual Default or Event of Default (as the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior case may be) will be deemed not to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of representation or warranty, a breach of covenant or undertaking, or a potential or actual Default or Event of Default (as the case may be) and will not prevent an Issuer from making any Subscription Request (in each case, a “case until after the end of the relevant Clean-up Default”Up Period) thenif:
(i) promptly upon becoming aware it would have been (if it were not for this provision) a breach of its occurrencerepresentation or warranty, a breach of covenant or undertaking, or a Default or Event of Default only by reason of circumstances relating to any member of the Company shall notify Group as at the Facility Agent Closing Date (or any obligation to procure or ensure in relation to a member of that Clean-up Default and the related event or circumstance (and Group as at the steps, if any, being taken to remedy itClosing Date); and
(ii) subject to paragraph in the case of any other Permitted Acquisition, it would have been (bif it were not for this provision) belowa breach of representation or warranty, during the Clean-up Period that Clean-up a breach of covenant or undertaking, or a Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect or Event of Default only by reason of circumstances relating to any Clean-up person (directly or indirectly) being the target of that Permitted Acquisition (or any obligation to procure or ensure in relation to such person), if and for so long as the circumstances giving rise to the relevant breach of representation or warranty, a breach of covenant or undertaking, or a Default thator Event of Default:
(iA) is not capable of remedy;
(ii) is are capable of remedy but or cure and, if the Company is aware of the relevant circumstances at the time, reasonable steps efforts are not being taken used to remedy or cure it;
(iiiB) has have not been procured by or approved by the Companyboard of directors (or equivalent body) of the Company (provided that it had actual knowledge thereof and that knowledge thereof does not equate to procurement or approval); orand
(ivC) could reasonably be expected to would not have a Material Adverse EffectEffect during the relevant Clean-Up Period.
(cb) If the relevant circumstances are continuing on or after the end last day of the Clean-up Up Period, there shall be a breach of representation or warranty, a breach of covenant or undertaking, or a Default or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Senior Notes Purchase Agreement (Inspired Entertainment, Inc.)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, If during the period of three months from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if Unconditional Date any matter event or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisitionfor this Clause 23.3) would constitute a breach of representation or warranty, a breach of covenant or a Default (the "Potential Event of Default") shall exist which consists of, or is a direct consequence of any event or circumstance which occurred in each caserelation to the Target or any of its Subsidiaries (or its or any of their business, a “Clean-up Default”assets or liabilities) thenon or before the Unconditional Date, then the following shall apply:
(ia) promptly upon becoming aware of its occurrence, the Company or Bidco or the Target shall notify the Facility Agent of that Clean-up fact by fax promptly after becoming aware thereof, giving a reasonable description of:
(i) the Potential Event of Default and the related event or circumstance (and the steps, if any, being taken to remedy it)its causes; and
(ii) subject the remedial action in relation to paragraph that Potential Event of Default which the Company and/or Bidco and/or the Target propose to take;
(b) below, during the Clean-up Period that Clean-up Potential Event of Default shall not constitute a Default., and the Facility Agent shall not with respect to that Potential Event of Default (but, for the avoidance of doubt, not so as to restrict the Facility Agent's rights to take such action with respect to any other Event of Default which is not a Potential Event of Default) be entitled to take any of the actions set out in Clause 23.2, until (assuming that the Potential Event of Default is then continuing) the earlier of:
(bi) Paragraph the date three months after the Unconditional Date; or
(aii) above the Facility Agent confirming in writing to the Company and Bidco that in the reasonable opinion of the Facility Agent it is likely that a Material Adverse Effect would result from such Potential Event of Default or from the effects thereof or from the continued inaction by the Facility Agent as regards the exercise of rights under this Agreement; or
(iii) a Material Adverse Effect actually occurring. Provided that (A) the foregoing shall not apply with respect to any Clean-up Potential Event of Default that:
under any of the following Clauses 23.1(a), (b)(i) (insofar as it relates to Clause 22.1(b)), (b)(iii), (d), (f), (g), (h), (i), (n), (p), (q), 76 (r) or (s), in each case irrespective of whether or not that Potential Event of Default occurred in consequence of any event or circumstance which occurred before the Unconditional Date, and (B) any Potential Event of Default shall nevertheless constitute a Default for the purposes of Clause 4.3, save (in the case only of a Potential Event of Default consisting of a Default arising under Clause 23.1 (b)(ii), (c) or (e)) where it is demonstrated to the reasonable satisfaction of the Majority Banks that such Potential Event of Default is likely to be cured within three months after the Unconditional Date without any Material Adverse Effect occurring, and (C) where the Potential Event of Default consists of a breach of Clause 22.1(a), the date referred to in paragraph (i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there above shall be a breach of representation or warranty, breach of covenant or Default, taken as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end date when the Company has issued further share capital or incurred further Subordinated Debt as referred to in Clause 21.6(d)(i) and the expiry of the relevant Clean-up Period and period referred to in the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result first lines of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material SubsidiaryClause 21.6(d).
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document:
(a) any breach of a representation under Clause 21 (Representations) or an undertaking under Clauses 22 (Information Undertakings) or 24 (General Undertakings); or
(b) any Default or Event of Default, in respect of any Permitted Acquisition made after the date of this Agreementother than a Non‑Clean‑Up Default, during the period from the date of closing (however defined) of that Permitted Acquisition will be deemed not to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute be a breach of representation or warranty, a breach of covenant an undertaking, a Default, an Event of Default or a Default reason for any Lender not to comply with its obligations under Clause 5.4 (in each case, a “Clean-up Default”Lenders’ participation) then(as the case may be) during the relevant Clean‑Up Period if:
(i) promptly upon becoming aware it would have been (if it were not for this provision) a breach of its occurrencerepresentation or warranty, a breach of an undertaking, a Default or an Event of Default only by reason of circumstances or matters relating exclusively to a person, business or undertaking which is the subject of a Permitted Acquisition (including, for the avoidance of doubt, the Company shall notify Acquisition) (or any obligation for any member of the Facility Agent of that Clean-up Default and the related event Group to procure or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect ensure in relation to any Clean-up Default that:
person, business or undertaking which is the subject of a Permitted Acquisition (i) is not capable including, for the avoidance of remedydoubt, the Acquisition));
(ii) it is capable of remedy but and, if the Parent is aware of it, reasonable steps are not being going to be taken to remedy it;
(iii) has the circumstances giving rise to it have not been procured by or approved by the Company; orParent or an Obligor;
(iv) could reasonably be expected to it does not have a Material Adverse Effect.; and
(cv) the circumstances giving rise to it do not exist after the Clean‑Up Date. If the relevant breach or circumstances are continuing on or after the end of the Clean-up PeriodClean‑Up Date, there shall be a breach of representation or warranty, breach of covenant or Event of Default or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to Closing Date and expiring 120 days after the date falling 90 days thereafter (the “Clean-up Period”)Closing Date, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject member of the relevant Permitted Acquisition Target Group would constitute:
(and which matter or circumstance exists prior to or on (but not afteri) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of a representation or warranty, warranty made in Clause 17 (Representations); or
(ii) a breach of covenant an undertaking in Clause 18 (Information Undertakings) or Clause 20 (General Undertakings); or
(iii) a Default or an Event of Default,
(in each case, a “Clean-up Relevant Default”) then:
(iA) promptly upon becoming aware of its occurrence, the Company shall notify the PIK Facility Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the PIK Facility Agent shall not be entitled to give any notice under Clause 21.17 (Acceleration) with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of:
(iv) the date immediately after the end of the Clean-up Period; and
(v) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) it is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the PIK Facility Agent giving notice to the Company or the Company becoming aware of the occurrence that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectCompany or Bidco.
(c) If For the relevant circumstances are continuing on avoidance of doubt subject to Clause 4.2 (Certain Funds), paragraph (a)(B) above shall not restrict the PIK Facility Agent’s right to give any notice under Clause 21.17 (Acceleration) with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to Closing Date and expiring 120 days after the date falling 90 days thereafter Closing Date (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject member of the relevant Permitted Acquisition Target Group would constitute:
(and which matter or circumstance exists prior to or on (but not afteri) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of a representation or warranty, warranty made in Clause 17 (Representations); or
(ii) a breach of covenant an undertaking in Clause 18 (Information Undertakings) or Clause 20 (General Undertakings); or
(iii) a Default or an Event of Default,
(in each case, a “Clean-up Relevant Default”) then:
(iA) promptly upon becoming aware of its occurrence, the Company shall notify the PIK Facility Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the PIK Facility Agent shall not be entitled to give any notice under Section 6.02 of Schedule 9 (Acceleration) with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of:
(iv) the date immediately after the end of the Clean-up Period; and
(v) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) it is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the PIK Facility Agent giving notice to the Company or the Company becoming aware of the occurrence that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectCompany or Bidco.
(c) If For the relevant circumstances are continuing on avoidance of doubt subject to Clause 4.2 (Certain Funds), paragraph (a)(B) above shall not restrict the PIK Facility Agent’s right to give any notice under Section 6.02 of Schedule 9 (Acceleration) with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance DocumentIn this Clause 29.12, in respect of any Permitted Acquisition made after the date of this Agreement, during Clean-Up Period means the period from the date of closing (however defined) of that Permitted Acquisition Closing Date to the date falling 90 180 days thereafter after the Closing Date.
(b) If, during the “Clean-up Up Period”), if any matter event or circumstance that occurs or exists exclusively in solely with respect of any entity which is the direct or indirect subject to a member of the relevant Permitted Acquisition Target Group (and or solely with respect to any of their assets or liabilities) which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or constitutes a Default (in each case, other than to the extent the relevant event or circumstance constitutes a “Clean-up Default”Default under Clause 29.3 (Breach of other obligations) then:for failure to comply with Clause 27.7 (Subsidiary indebtedness)):
(i) the Companies must promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and fact, giving a reasonable description of the related relevant event or circumstance (and the steps, if any, being taken the relevant member of the Group proposes to take to remedy it); and
(ii) subject to except as set out in paragraph (bc) below, during the Clean-up Period Up Period, no Finance Party shall be entitled to take any of the actions or to give any notice referred to in Clause 29.11 (Acceleration), or to take any other action (or prevent any Utilisation), with respect to that Clean-up Default shall not constitute a Default.
(bc) Paragraph (ab)(ii) above shall not apply with respect to any Clean-up Default thatif:
(i) the event or circumstance giving rise to the Default was procured or approved by a member of the Group (other than a member of the Target Group) after the Closing Date;
(ii) the Default is not capable of remedy;
(iiiii) it would otherwise permit any Utilisation to be made by a member of the Group in respect of which any of the events or circumstances referred to in Clauses 29.5 (Cross acceleration) (other than to the extent the relevant event or circumstance has arisen as a result of the Acquisition), 29.6 (Insolvency), 29.7 (Creditors’ process) or 29.9 (Security enforceable) have occurred;
(iv) the Default is capable of remedy but reasonable steps are not being taken to remedy it;
(iii) has been procured by it or approved by the Companyevent or circumstance giving rise to the Event of Default; or
(ivv) could the Default would reasonably be expected to have a Material Adverse Effect.
(cd) If the relevant event or circumstances giving rise to the Event of Default are continuing on or after the end of the Clean-up Up Period, there nothing in this Clause 29.12 shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies prevent any Finance Party from taking any of the actions or from giving any notice referred to in Clause 29.11 (Acceleration), or from taking any other action which it is entitled to take under the Finance Parties)Documents, with respect to that Event of Default.
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Multicurrency Term and Revolving Facilities and Subscription Agreement (BHP Billiton LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date terms of this Agreement, during the period from commencing on the date of closing (however defined) of that Permitted Acquisition to Closing Date and expiring 120 days after the date falling 90 days thereafter (the “Clean-up Period”)Closing Date, if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject member of the relevant Permitted Acquisition Target Group would constitute:
(and which matter or circumstance exists prior to or on (but not afteri) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of a representation or warranty, warranty made in Clause 17 (Representations); or
(ii) a breach of covenant an undertaking in Clause 18 (Information Undertakings) or Clause 20 (General Undertakings); or
(iii) a Default or an Event of Default, (in each case, a “Clean-up "Relevant Default”") then:
(iA) promptly upon becoming aware of its occurrence, the Company shall notify the PIK Facility Agent of that Clean-up Relevant Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(iiB) subject to paragraph (b) below, during the Clean-up Period that Clean-up Relevant Default shall not constitute a Default or an Event of Default and the PIK Facility Agent shall not be entitled to give any notice under Clause 21.17 (Acceleration) with respect to that Relevant Default until (if that Relevant Default is then continuing) the earlier of:
(iv) the date immediately after the end of the Clean-up Period; and
(v) the date (if any) on which a Material Adverse Effect occurs as a result of that Relevant Default.
(b) Paragraph (aa)(B) above shall not apply with respect to any Clean-up Relevant Default to the extent that:
(i) the Relevant Default is not capable of remedy;; or
(ii) it is capable of remedy but and reasonable steps are not being taken to remedy it;it within 20 Business Days of the PIK Facility Agent giving notice to the Company or the Company becoming aware of the occurrence that Relevant Default; or
(iii) the Relevant Default has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse EffectCompany or Bidco.
(c) If For the relevant circumstances are continuing on avoidance of doubt subject to Clause 4.2 (Certain Funds), paragraph (a)(B) above shall not restrict the PIK Facility Agent's right to give any notice under Clause 21.17 (Acceleration) with respect to any Default or after the end Event of the Clean-up Period, there shall be Default which is not a breach of representation or warranty, breach of covenant or Relevant Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, If during the period ending on the date three months from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if Unconditional Date any matter event or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisitionfor this Clause 24.3) would constitute a breach of representation or warranty, a breach of covenant or a Default (the "POTENTIAL EVENT OF DEFAULT") shall exist which consists of, or is a direct consequence of any event or circumstance which occurred in each caserelation to the Target or any of its Subsidiaries (or its or any of their business, a “Clean-up Default”assets or liabilities) thenon or before the Unconditional Date, then the following shall apply:
(ia) promptly upon becoming aware of its occurrence, the Company or Bidco or the Target shall notify the Facility Agent of that Clean-up fact by fax promptly after becoming aware thereof, giving a reasonable description of:
(i) the Potential Event of Default and the related event or circumstance (and the steps, if any, being taken so far as known to remedy it)them) its causes; and
(ii) subject any remedial action in relation to paragraph that Potential Event of Default which the Company and/or Bidco and/or the Target propose to take or procure is taken;
(b) below, during the Clean-up Period that Clean-up Potential Event of Default shall not constitute a Default., and the Facility Agent shall not with respect to that Potential Event of Default (but, for the avoidance of doubt, not so as to restrict the Facility Agent's rights to take such action with respect to any other Event of Default which is not a Potential Event of Default) be entitled to take any of the actions set out in Clause 24.2, until (assuming that the Potential Event of Default is then continuing) the earlier of:
(bi) Paragraph the date three months after the Unconditional Date; or
(aii) above the date on which, as a direct consequence of it being reasonably likely that a Material Adverse Effect would result from such Potential Event of Default or from the effects thereof or from the continued inaction by the Facility Agent and the Banks as regards the exercise of rights under this Agreement, the Facility Agent on the instructions of the Majority Banks has confirmed in writing to the Company that it is so reasonably likely; or
(iii) a Material Adverse Effect actually occurring as a direct consequence of that Potential Event of Default. Provided that (A) the foregoing shall not apply with respect to any Clean-up Potential Event of Default that:
under any of Clauses 24.1(a), (b)(iii), (d), (e)(i) (in consequence only of Borrowings being declared due and payable or capable of being declared due and payable which are not Refinancing Debt), (f), (g), (h), (i), (j), (l), (p), (q), (r), (s), (t), or (v) in each case irrespective of whether or not that Potential Event of Default occurred in consequence of any event or circumstance which occurred before the Unconditional Date, and (B) any Potential Event of Default shall nevertheless constitute a Default for the purposes of Clause 4.3, save (in the case only of a Potential Event of Default consisting of a Default arising under Clause 24.1 (b)(ii), (c) or (e) (i) (in consequence as aforesaid)) where it is not capable demonstrated to the reasonable satisfaction of remedy;
(ii) the Majority Offer Banks that such Potential Event of Default is capable of remedy but reasonable steps are not being taken likely to remedy it;
(iii) has been procured by or approved by be cured within three months after the Company; or
(iv) could reasonably be expected to have a Unconditional Date without any Material Adverse EffectEffect occurring.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Facility Agreement (Pacificorp /Or/)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during the Clean-up Period that Clean-up Default shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up Default that:
(i) is not capable of remedy;
(ii) is capable of remedy but reasonable steps are not being taken to remedy it;;
(iii) has been procured by or approved by the Company; or
(iv) could reasonably be expected to have a Material Adverse Effect.
(c) If the relevant circumstances are continuing on or after the end of the Clean-up Period, there shall be a breach of representation or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Clean-up Default is continuing in relation to a Material Subsidiary, during the period until the earlier of the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material Subsidiary.
Appears in 1 contract
Sources: Facility Agreement (IHS Holding LTD)
Clean-Up Period. (a) Notwithstanding any other provision of any Finance Document, in respect of any Permitted Acquisition made after the date of this Agreement, during the period from the date of closing (however defined) of that Permitted Acquisition to the date falling 90 days thereafter (the “Clean-up Period”), if any matter or circumstance that exists exclusively in respect of any entity which is the direct or indirect subject of the relevant Permitted Acquisition (and which matter or circumstance exists prior to or on (but not after) the date of the closing (howsoever defined) of the relevant Permitted Acquisition) would constitute a breach of representation or warranty, a breach of covenant or a Default (in each case, a “Clean-up Default”) then:
(i) promptly upon becoming aware of its occurrence, the Company shall notify the Facility Agent of that Clean-up Default and the related event or circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject to paragraph (b) below, during During the Clean-up Period that or the Additional Acquisition Clean-up Period (as applicable), any breach of a representation or an undertaking or any Default which solely arises with respect to (in the case of the Clean-up Period) any Target Group Member or (in the case of the Additional Acquisition Clean-up Period) a newly acquired Group Member acquired from a third party pursuant to the applicable Permitted Acquisition, shall not constitute a Default.
(b) Paragraph (a) above shall not apply with respect to any Clean-up an Event of Default that:
or allow acceleration, provided that such breach or default (i) is not capable of remedy;
being remedied within the Clean-up Period or the Additional Acquisition Clean-up Period (as applicable) and reasonable steps are being taken to cure it and further (ii) is capable of remedy but reasonable steps are does not being taken to remedy it;
(iii) has been procured by or approved by the Company; or
(iv) could have and would not reasonably be expected to have a Material Adverse Effect.
Effect and was not procured or approved by a Transaction Obligor, (ciii) If the relevant circumstances are continuing on or after does not exist at the end of the Clean-up Period, there shall be a breach of representation Period or warranty, breach of covenant or Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
(d) If a Additional Acquisition Clean-up Default is continuing Period, as applicable, and (iv) does not relate to:
1. defaults relating to (i) Financial Covenants, (ii) breach of undertakings listed in relation 2 below, (iii) misrepresentation for representations listed in 3 below, (iv) insolvency and insolvency related events, (v) unlawfulness/invalidity/repudiation of Finance Documents and (vi) change of ownership;
2. breaches of undertakings relating to a Material Subsidiary(i) authorisations (for the Facility), during (ii) ranking, (iii) financial assistance, (iv) Guarantors, Transaction Security and further assurance, (v) sanctions, anti-money laundering, anti-corruption and anti-terrorism , (vi) the period until Merger Documents, (vii) the earlier Shareholder Documents, (viii) the DSRA and (ix) conditions subsequent; and
3. misrepresentations for representations on (i) status, (ii) binding obligations, (iii) non-conflict, (iv) power and authority, (v) validity and admissibility in evidence, (vi) governing law and enforcement, (vii) insolvency or insolvency proceedings, (viii) sanctions, anti-money laundering, anti-corruption and anti- terrorism , (ix) ranking, (x) ownership of shares and assets charged under Transaction Security Documents, (xi) shares subject to Transaction Security Documents, (xii) Merger Documents and (xiii) the end of the relevant Clean-up Period and the relevant Clean-up Default ceasing to continue, any Subsidiary which ceased or would cease to be a Material Subsidiary as a result of the relevant Permitted Acquisition, by operation of the definition of Material Subsidiary, shall continue to be a Material SubsidiaryShareholder Documents.
Appears in 1 contract