Consequences of Events of Default. If any Event of Default shall occur for any reason, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note shall be and become immediately due and payable, and the Company shall immediately pay to Holder all such Obligations. Upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holder.
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Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such Event of Default within the parameters agreed by the Shareholders pursuant to clause 17.2, or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly;
(ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure.
(c) If, following the issue of a Default Notice, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedy), then, for so long as the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by the Defaulting Shareholder in accordance with the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to the Defaulting Shareholder in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall occur for any reason, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note shall be and become immediately due and payable, and the Company shall immediately pay to Holder all such Obligations. Upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holderhave been remedied.
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Consequences of Events of Default. If any Event of Default shall occur for any reason, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note shall be and become immediately due and payable, and the Company shall immediately pay to Holder all such Obligations. (i) Upon the occurrence of an actual or deemed entry Event of Default, the interest rate on the Note shall increase immediately by an order for relief increment of two (2) percentage points to the extent permitted by law. Any such increase of the interest rate resulting from the operation of this subparagraph shall terminate as of the close of business on the first subsequent date on which no Events of Default exist (subject to subsequent increases pursuant to this subparagraph).
(ii) If an Event of Default has occurred, the Principal Amount, together with all accrued but unpaid interest of the Note on such date shall become immediately due and payable without any action on the part of the Noteholder, and the Borrower shall immediately pay to the Noteholder all amounts due and payable with respect to the Company Note.
(iii) The Noteholder shall also have any other rights which such holder may have been afforded under Security Agreement, any other contract or agreement and any other rights which such holder may have pursuant to applicable law.
(iv) The Borrower hereby waives diligence, presentment, protest and demand and notice of protest and demand, dishonor and nonpayment of this Note, and expressly agrees that this Note, or any payment hereunder, may be extended from time to time and that the United States Bankruptcy Code, then all Obligations under Noteholder may accept security for this Note or release security for this Note, all without in any way affecting the liability of the Borrower hereunder.
(v) The Noteholder's right and remedies shall automatically be due immediately without notice cumulative. No exercise by the Noteholder of one right or remedy shall be deemed an election which precludes other remedies, and no waiver by the Noteholder of any kindEvent of Default on the Borrower's part shall be deemed made unless done in a writing signed by the Noteholder. No delay by the Noteholder shall constitute a waiver, election, or acquiescence by it.
(vi) The Company agrees to pay Holder Borrower shall pay, or reimburse the Noteholder for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorneys fees and expenses) paid or incurred by Holder (including attorney's fees) the Noteholder before and after judgment in connection with the enforcement enforcing, protecting or protection of preserving its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereofand as a Noteholder under the Security Agreement.
(vii) If the Borrower becomes aware of the occurrence of an Event of Default, or in connection with the transactions contemplated hereby. Holder it shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation give notice of such mutilated Note, or in lieu Event of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory Default to the Company Noteholder and IDI. If the Noteholder believes that an Event of Default has occurred and has not received notice to that effect from the Borrower, it shall give notice of such loss, theft or destruction. Waiver Event of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed Default to be a contract made under the laws of the State of New York Borrower and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and HolderIDI.
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Consequences of Events of Default. (a) If any Event one or more of the Events of Default shall occur for any reasonhave occurred, whether voluntary or involuntarythen, and be continuingthe Lender, Holder may, upon by a written notice or demand, to the Borrower may declare the outstanding Obligations principal, all accrued interest charges on the Facility and all other charges and dues, which may be payable by the Borrower under or in terms of this Note Agreement and/or any other agreements, documents subsisting between the Borrower and the Lender, as well as other charges to be due and payable, whereupon upon such declaration the outstanding Obligations under this Note same shall be and become immediately due and payable, payable forthwith and the Company shall immediately pay to Holder all such Obligations. Upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights security in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time Facility and any other rights loans shall become enforceable without any intervention of Courts, notwithstanding anything to the contrary in this Agreement or any other agreement/s or documents. The Lender shall have the right to suspend or terminate the right of the Borrower to make further withdrawals. Upon such termination, the un-drawn amount of the Loan shall stand cancelled.
(b) The Lender may enter upon and take possession of the Project of the Borrower.
(c) The Lender shall have the right to, without accelerating the repayment of whole of the outstanding Loan, sell or cause to sell the hypothecated securities which Holder may have pursuant are sufficient to applicable law. Lost, Stolen, Destroyed or Mutilated Note . pay the defaulted amounts under this Agreement.
(d) In case this Note the Borrower is a company, the Lender shall have the right to nominate a director on the board of directors of the Borrower to protect the interest of the Lender and normal fees and expenses of such director shall be mutilated, lost, stolen defrayed solely by the Borrower. The Borrower agrees and acknowledges that such director shall not be required to hold qualification shares and shall not be liable to retirement until all the Outstanding Amounts under the Facility are repaid by the Borrower to the satisfaction of the Lender.
(e) The Lender may transfer the property of the Borrower in its favour or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation favour of such mutilated Noteother Person by way of lease, leave and license, sale or in lieu of this Note being lostotherwise.
(f) The Lender may carry out technical, stolen legal or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed to be a contract made under the laws financial inspection of the State Project and books of New York and for all purposes shall be governed by, construed under, and enforced in accordance account with the laws assistance of its representative, at the cost of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and HolderBorrower.
Appears in 1 contract
Sources: Loan Agreement
Consequences of Events of Default. If (i) When any Event of Default shall occur for any reason, whether voluntary or involuntary, has occurred and be is continuing, Holder maythe interest rate on this Guaranteed Senior Secured Primary Note shall increase to the Default Interest Rate. Any increase of the interest rate resulting from the operation of this clause shall terminate as of the close of business on the date on which no Events of Default exist (subject to subsequent increases pursuant to this clause), provided, however, that nothing herein shall prevent subsequent increases of the interest rate to the Default Interest Rate upon notice any subsequent Defaults or demandEvents of Default by the Company.
(ii) If an Event of Default of the type described in Section 6(a)(vi) has occurred, declare the outstanding Obligations under aggregate principal amount of this Guaranteed Senior Secured Primary Note to be (together with all accrued interest thereon and all other amounts due and payable, whereupon the outstanding Obligations under this Note payable with respect thereto) shall be and become immediately due and payablepayable without any action on the part of the Noteholder, and the Company shall immediately pay to Holder the Noteholder all such Obligations. Upon amounts due and payable hereunder.
(iii) If any Event of Default has occurred (other than under Section 6(a)(vi)), the occurrence Noteholder may declare this Guaranteed Senior Secured Primary Note to be immediately due and payable and may demand immediate payment of an actual or deemed entry of an order for relief the Unpaid Principal Amount (together with all accrued and unpaid interest and all other amounts due and payable with respect thereto).
(iv) If any Event of Default or Default shall occur and be continuing, the Holder of any Guaranteed Senior Secured Primary Note may proceed to the Company protect and enforce its rights under the United States Bankruptcy CodeGuaranteed Senior Secured Primary Note and the Securities Purchase Agreement by exercising such remedies as are available to such Holder in respect thereof, then all Obligations under this Note shall automatically be due immediately without notice applicable Law, whether for specific performance of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim covenant or other activity of Holder to collect or otherwise enforce the Obligations under agreement contained in this Guaranteed Senior Secured Primary Note or otherwise; no remedy is intended to be exclusive of any portion thereofother remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or now or hereafter existing at Law or in connection with the transactions contemplated hereby. Holder equity or by statute or otherwise.
(v) If an Event of Default or Default shall also have any other rights which Holder may have been afforded under any contract or agreement at any time occur and any other rights which Holder may have pursuant to applicable law. Lostbe continuing, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to payments by the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note amounts due to the Noteholder shall be deemed made in the following order or priority:
(A) all accrued unpaid past due interest on the Notes issued pursuant to be a contract made under the laws of Securities Purchase Agreement;
(B) all accrued unpaid interest due on the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with Notes issued pursuant to the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended Securities Purchase Agreement and the observance of any term of this Note may be waived Ancillary Agreements;
(either generally or in a particular instance C) all accrued unpaid and either retroactively or prospectively), only with past due amounts pursuant to the written consent of Securities Purchase Agreement and the Company Ancillary Agreements; (D) all other accrued unpaid amounts pursuant to the Securities Purchase Agreement and Holder.the Ancillary Agreements; and
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Consequences of Events of Default. (a) If any an Event of Default occurs, then any of the Shareholders who are not in default (collectively, the “Non-Defaulting Shareholders” and each a “Non-Defaulting Shareholder”) may deliver to the other Shareholders a Notice of the occurrence of such Event of Default, setting forth the identity of the Shareholder who is in default or to which the Event of Default relates (the “Defaulting Shareholder”) and the circumstances of such Event of Default. Upon the expiration of a period of [***] thereafter, if the Event of Default is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall occur apply.
(b) If a Non-Defaulting Founding Shareholder has delivered a Continuing Default Notice in accordance with Section 18.2(a), then for so long as the specified Event of Default is continuing:
(i) if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex D (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex D (Acquisition of Ownership Interests) for any reason, whether voluntary or involuntarythen the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, and be continuingthen:
(A) during a [***] period following the delivery of the Continuing Default Notice, Holder maythe Founding Shareholders shall, upon notice or demandin good faith, declare discuss the outstanding Obligations under this Note to be due and payable, whereupon continuation of the outstanding Obligations under this Note shall be and become immediately due and payable, various Project Agreements between the Company and the Company shall immediately pay to Holder all such Obligations. Upon Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed Dow Founding Shareholder ceasing to be a contract made under Shareholder in the laws Company. Following such [***] period after the delivery of the State Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex D (Acquisition of New York Ownership Interests) shall apply.
(B) The Put Notice delivered by the Dow Founding Shareholder shall indicate:
(1) which [***] the Dow Founding Shareholder (and for all purposes / or its Qualifying Affiliates) shall be governed by, construed under, and enforced terminate in accordance with the laws terms therein;
(2) the price for the [***] applicable in accordance with Section 5.1 of the State of New York. Amendment and Waiver . Any term of this Note may be amended and [***];
(3) which [***] the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only Company has entered into with the written consent of Dow Founding Shareholder (and / or its Affiliates) relating to [***] [***] that the Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and Holderthe Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests).
(c) From the date of the completion of the transactions contemplated by Section 18.2(b)(i), Section 18.2(b)(ii), or Section 18.2(b)(iii), as the case may be:
(i) the Shareholders who are transferees of the Transferor shall assume in full, on a pro rata basis as between themselves, and at no cost to the Transferor or its Affiliates, all liabilities of the Transferor and its Affiliates in or related to such Transferor’s capacity as Shareholder, including all guarantees given or delivered by the Transferor or its Affiliates in such capacity, and:
(A) all Non-Transferring Shareholders shall release (and cause their Affiliates and the Company to release) the Transferor and its Affiliates from all liabilities in or related to the Transferor’s capacity as a Shareholder; and
(B) any guarantees delivered by the Transferor or its Affiliates shall immediately be deemed to have been terminated, provided that nothing in this Section 18.2(c)(i) shall affect any liabilities of the Transferor or its Affiliates in connection with any Principal Agreement to which it, or its Affiliate, is party, or any guarantees in respect thereof; and
(ii) the Transferor shall cease to be a Shareholder and shall cease to be a party to this Shareholders’ Agreement and, without prejudice to any rights or obligations that shall have accrued or become due prior to such date and the rights or remedies that any party may have in respect of any breach of this Shareholders’ Agreement prior to such date (other than any breach constituting the Event of Default leading to the Transfer), the Transferor shall cease to have any rights or obligations under this Shareholders’ Agreement except for those rights and obligations contained in, and the provisions of, Sections 1 (Definitions and Usage), 4.2 (Term and Termination of Shareholders’ Agreement; Survival), 14.1(g)-(h) (Books and Records) (in respect of the years during which the Transferor was a Shareholder), 15.6 (Non-Breach of Law), 17.5(a) (Principal Agreements), 19.3(e) (Transfers to Third Parties), 20.4 (Equity Rebalancing True-Up), 21 (Confidential Information), Section 22 (Indemnification and Liability), 24 (Dispute Resolution Procedures), 25 (Assignment), 26.2 (Binding Effect), 26.3 (Notices), 26.4 (Entire Agreement), 26.6 (Waivers) through 26.11 (Further Actions) (inclusive), 26.13 (Reliance), 26.14 (Prohibited Payments), 26.15 (Immunity), and Annex A (Dispute and Expert Resolution Procedures), which shall continue in force after the Transferor ceases to be a Shareholder.
(d) The completion of the transactions contemplated in Section 18.2(b) shall be the Non-Defaulting Shareholders’ (and their Affiliates’) and the Company’s sole and exclusive remedy in respect of all Losses arising (whether under this Shareholders’ Agreement, under Law, or otherwise) as a result of the events or circumstances connected with the Event of Default that is the subject of the relevant Continuing Default Notice (and the Non-Defaulting Shareholders shall not allow the Company to make any claim against the Defaulting Shareholder in relation to such events or circumstances), provided that nothing in this Section 18.2(d) shall prevent the Company from exercising any right it may have under any of the Principal Agreements.
(e) The Shareholders agree that the Events of Default set out in Section 18.1 (Events of Default) are the sole and exclusive grounds upon which a Shareholder may terminate this Shareholders’ Agreement and the Shareholders agree to exclude, to the extent permissible, any right of termination arising under Applicable Law contrary to the terms hereof. Subject to the limitations set forth in Sections 18.2(c) and 18.2(d) and the immediately preceding sentence, if there is a breach of this Shareholders’ Agreement, then any Shareholder not in breach shall be free to exercise all rights and remedies that may be available to such Shareholder under this Shareholders’ Agreement or Applicable Law.
Appears in 1 contract
Consequences of Events of Default. If any 15.1 The Investor shall have right to declare an Event of Default shall occur for any reason, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare pursuant to occurrence of the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note shall be and become immediately due and payable, and the Company shall immediately pay to Holder all such Obligations. events as identified above in Clause 14.
15.2 Upon the occurrence of an actual Event of Default, the Investor shall send a notice to the Debenture Trustee (“Event of Default Notice”) by registered post/acknowledgement due or deemed entry speed post/acknowledgement due or courier or hand delivery with proof of delivery as also through email as a text or as an order for relief attachment to email with a notification including a read receipt, and proof of dispatch of the Event of Default Notice or email, shall be maintained.
15.3 The Debenture Trustee shall take necessary action of enforcing the Security.
15.4 Subject to the above, the Investor shall apart from the right to enforce Secured Interest also have the following rights (notwithstanding anything in these presents to the contrary):
15.4.1. To enforce any Security created pursuant to the Security Documents in accordance with the terms thereof, as may be set out therein, towards the due discharge of the Secured Obligations;
15.4.2. To appoint a nominee director on the Board of the Company (“Nominee Director”); Once Nominee Director has been appointed, the Investor shall not be entitled to appoint Investor Observer;
15.4.3. Initiate any enforcement action including without limitation under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities I▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ and Insolvency and Bankruptcy Code, 2016 (wherever applicable);
15.4.4. Levy Default Interest on the Investor Aggregate Accreted Amount and Coupon amounts outstanding on the Investor CCDs;
15.4.5. The 6% (six per cent) Coupon shall be escalated to such a coupon which would entitle the Investor [***]% (*** per cent) IRR with respect to all of the Investor CCDs from the date of allotment and subscription of the relevant Investor CCD till the receipt of all the moneys due and payable to the Investor in accordance with the terms of this DSA and the other Transaction Documents;
15.4.6. Investor prior approval shall be required in the event of the following:
(i) Borrowings obtained (secured or unsecured) and incurring any indebtedness or making any prepayments or giving any guarantee by the Company, except for an amount of upto INR 30,00,00,000 (Rupees thirty crores only) on account of completion of existing projects of the Company;
(ii) Any change in the authorised, issued, paid-up, subscribed equity or preference capital structure of the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice or amendment thereof (including issuance of any kindSecurities by the Company), or any re-organization or reclassification of the capital structure of the Company, redemption, repurchase or buyback or other cancellation of any Securities of the Company or the creation of any subsidiary and any intermediate holding company or joint venture, whether by acquisition of otherwise or modification to the terms of any joint venture or strategic alliance;
(iii) Any new capital expenditure by the Company in a financial year, except for an amount of upto INR 30,00,00,000 (Rupees thirty crores only) on account of existing and committed capital expenditure for completion of existing projects of the Company.
15.4.7. Exercise such other rights under Applicable Law, as the Investor may deem fit.
15.5 If the Investor appoints a Nominee Director as mentioned in Clause 15, the following provisions shall become applicable:
15.5.1. The Company agrees shall appoint the Nominee Director forthwith on receiving a nomination notice from the Investor.
15.5.2. The Nominee Director shall not be required to pay Holder hold qualification shares nor be liable to retire by rotation and be appointed member of all out-of-pocket costs committees if any constituted by the Company, if so desired by Investor/Debenture Trustee. However, the Nominee Director shall provide all requisite documents required under the Act for his appointment.
15.5.3. The Nominee Director shall be entitled to receive all notices, agenda, etc. and expenses to attend all general meetings and board meetings and all committees constituted the Company of which (s)he is a member. If, at any time, the Nominee Director is not able to attend any meeting, the Investor/Debenture Trustee may depute an observer to attend the meeting.
15.5.4. Any expenditure incurred by Holder (including attorney's fees) Investor/ Debenture Trustee and/or the Nominee Director in connection with the enforcement or protection travel and stay expenses for attending Board meetings shall be borne and payable by the Company.
15.5.5. The appointment/removal of its rights a Nominee Director shall be by notice in writing by Investor/Debenture Trustee, addressed to the Company and shall (unless otherwise indicated in such notice) take effect forthwith upon such a notice being delivered to the Company.
15.5.6. The Nominee Director shall be entitled to all the rights, privileges and indemnities of other Directors but excluding any sitting fees, other fees, commission, money, remuneration and expenses, as are payable by the Company to the other Directors.
15.5.7. Once the Nominee Director is appointed as aforesaid, for all meetings of the Board the presence of the Nominee Director shall be required for the purposes of achieving quorum and no decision may be taken by the Board, in relation to this Noteany matters, including any suitwithout having obtained the approval of the Nominee Director, actionexcept if the Nominee Director fails to attend 2 (two) consecutive adjourned meetings, claim or other activity of Holder provided sufficient time period has been given between the adjourned meetings and detailed notices, agenda etc., has been delivered to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated herebysuch Nominee Director/ Investor.
15.5.8. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the The Company shall issue a new Note amend its Articles of like dateAssociation, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Noteif necessary, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to give effect to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed to be a contract made under above provisions governing the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and HolderNominee Director.
Appears in 1 contract
Sources: Debenture Subscription Agreement (Sify Technologies LTD)
Consequences of Events of Default. If (a) Notwithstanding any other provision of this Agreement, if an Event of Default shall occur occurs, then, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) at any reasonBoard of Managers’ meeting where the voting of the Board of Managers results in a tied vote, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare a Board Manager nominated by the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note Non-Defaulting Shareholder shall be and become immediately due and payable, entitled to cast an additional vote;
(ii) notwithstanding the terms of the Shareholder Loan Agreements and the Company Shareholders’ Loan Repayment and Dividend Policy, the Defaulting Shareholder shall immediately pay not be entitled to Holder all such Obligationsreceive any Shareholder Loan repayments or dividends in accordance with the Shareholders’ Loan Repayment and Dividend Policy. Upon The Defaulting Shareholder’s share of any Shareholder Loan repayments or dividends made after the occurrence of an actual Event of Default, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its option to purchase all (but not less than all) of the Shareholder Instruments held by the Defaulting Shareholder as set forth in clause 15.3(c).
(b) Notwithstanding any other provision of this Agreement, for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shareholder Instruments may take place other than in accordance with clauses 15.3(c) and 16.8.
(c) If, following the issue of a Default Notice, the Event of Default is not remediable, or if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder or ▇▇▇▇▇▇ Drilling International Limited or an Event of Default described in clause 15.1(j) shall be deemed entry incapable of an order remedy), then, for relief with respect so long as the applicable Event of Default is continuing:
(i) if the Defaulting Shareholder is Nabors, Saudi Aramco shall have a Call Option which may be exercised by issuing a Call Notice and the provisions of clause 16.8 shall apply provided that Saudi Aramco may only issue a Call Notice if: (A) the Call Notice is issued within one hundred and fifty (150) days of the Default Notice being given or received (as applicable) by Saudi Aramco; and (B) Saudi Aramco is not itself a Defaulting Shareholder;
(ii) if the Defaulting Shareholder is Saudi Aramco, Nabors shall have a Put Option which may be exercised by issuing a Put Notice and the provisions of clause 16.9 shall apply provided that Nabors may only issue a Put Notice if: (A) the Put Notice is issued within one hundred and fifty (150) days of the Default Notice being given or received (as applicable); (B) Nabors is not itself a Defaulting Shareholder; and (C) only to the extent such Event of Default occurs during the Transition Period, Nabors has provided commercially reasonable assistance to the Company to put in place alternative arrangements for the services it has been providing to the Company under the United States Bankruptcy CodeServices Agreement, then all Obligations under provided that if a Call Notice or Put Notice (as applicable) is not issued in accordance with this Note shall automatically be due immediately without notice clause 15.3(c) and clauses 16.8 and 16.9 (as applicable), within one hundred and fifty (150) days of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder the Default Notice being given or received (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyedas applicable), the Company shall issue a new Note Event of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note Default shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holderhave been remedied.
Appears in 1 contract
Consequences of Events of Default. (a) If any an Event of Default shall occur occurs, then the Company or any non-Defaulting Holder may notify the other Members by a written notice of the occurrence of such Event of Default (such notice, the “Default Notice”), setting forth the identity of the Member who is in default or to which the default relates or the Defaulting FI Member Owner (such Member or Defaulting FI Member Owner, each, a “Defaulting Holder”) and the circumstances of such Event of Default.
(b) Subject in all cases to any restrictions imposed by Government Rule, (i) from the date of the Default Notice and for as long thereafter as the Event of Default persists and is not cured: (A) the Defaulting Holder and any reason, whether voluntary Manager appointed by (or involuntary, and be continuing, at the direction of) such Defaulting Holder may, upon notice or demand, declare the outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note in accordance with Section 7.1(b) shall be restricted from voting in connection with any actions of the Company for so long as such Event of Default continues (and become immediately due any Delegate appointed by such Defaulting Holder (or a Manager appointed by (or at the direction of) such Defaulting Holder) shall vote and payablefor all purposes hereunder shall be deemed to have voted (if such Manager does not vote as required hereunder) in accordance with the direction of the Managers appointed by (or at the direction of) the non-Defaulting Holders in accordance with Section 7.1(b) in such Class of Managers as though such Delegate was appointed by (or at the direction of) such non-Defaulting Holders), (B) the vote of any Defaulting Holder or Manager appointed by (or at the direction of) such Defaulting Holder shall not be required to take actions in accordance with this Agreement, and the presence of the Defaulting Holder or any Managers appointed by (or at the direction of) the Defaulting Holder shall not be required for the purposes of any quorum requirements hereunder and (C) with respect to the approval of any Qualified Majority Matter, Supermajority Matter and Unanimous Matter or any other matter requiring approval of the Members, the Defaulting Holder shall be deemed to have voted (either directly or through the FI Member) on a proportionate basis in accordance with the manner in which the votes in respect of all Capital Units not held by the Defaulting Holder were cast; provided, that until the 30th day following the date of the Default Notice, each Unanimous Matter shall continue to require the affirmative vote of a Defaulting Holder with a Capital Percentage in excess of 5.0% and (ii) from the 60th day following the date of the Default Notice and for as long thereafter as the Event of Default persists and is not cured, the Defaulting Holder shall be restricted from receiving any financial statements, reports, plans, forecasts or other information pursuant to Section 2.12 (other than financial statements, reports, plans, forecasts or other information reasonably necessary or appropriate for such Defaulting Holder to cure the Event of Default or to satisfy its tax, reporting, and compliance obligations).
(c) The rights of the Members pursuant to this Section 13.2 shall not be exclusive, but shall be in addition to any other rights or remedies available to any of the Members or the Company at law or in equity, including (but subject to the terms and conditions therein) any rights under the Subscription Agreements (provided, that, notwithstanding anything to the contrary in this Agreement, this Section 13.2 shall immediately pay provide the sole and exclusive remedies of the Parties (and the Parties hereby waive any other remedies) with respect to any Payment Default arising as a result of a Blocking Sanction, provided, further, that the foregoing limitation applies solely with respect to a Blocking Sanction and shall not limit other rights with respect to any other breach of this Agreement then-occurring or arising thereafter). Notwithstanding anything to the contrary herein or the Subscription Agreements, while the Company and the Members may concurrently pursue a remedy under this Agreement and the Subscription Agreement, if applicable, in no event shall the Company and the Members be entitled to recovery or other remedies under both for any cause of action that is based on similar facts. For the avoidance of doubt, if one or more Non-Defaulting Holders elect to fund a Cure Amount pursuant to Section 13.3 and, prior to the conversion of the resulting Defaulting Holder all Loan into Capital Units, the Company or any Non-Defaulting Holder successfully compels the payment of the relevant amount in default, then the proceeds of such Obligations. Upon payment shall be utilized to mandatorily prepay the Defaulting Holder Loan and shall not be utilized as an Equity Contribution hereunder.
(d) If the Defaulting Holder disputes in good faith the occurrence of an actual Event of Default (other than an Event of Default described in Section 13.1(a)(vii), Section 13.1(b) or deemed entry Section 13.1(c)(vii), it being understood that the occurrence of an order Event of Default described in Section 13.1(a)(vii), Section 13.1(b) or Section 13.1(c)(vii) cannot be disputed in good faith pursuant to this Section 13.2(d)), for relief with respect so long as the Defaulting Holder diligently pursues a final determination as to the Company under occurrence of an Event of Default, including, if necessary, by the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation prompt final determination of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to dispute by the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced arbitration tribunal in accordance with Section 16.6, the laws consequences set forth in Section 13.2(b) shall not apply; provided, upon final determination of such dispute that an Event of Default occurred, or if at any point the State of New York. Amendment and Waiver . Any term of this Note may be amended and Defaulting Holder delays or otherwise fails to diligently pursue a final determination, the observance of any term of this Note may be waived (either generally or consequences set forth in a particular instance and either retroactively or prospectively), only with the written consent of the Company and HolderSection 13.2(b) shall apply.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextDecade Corp.)
Consequences of Events of Default. (a) If any an Event of Default occurs, then any of the Shareholders who are not in default (collectively, the “Non-Defaulting Shareholders” and each a “Non-Defaulting Shareholder”) may deliver to the other Shareholders a Notice of the occurrence of such Event of Default, setting forth the identity of the Shareholder who is in default or to which the Event of Default relates (the “Defaulting Shareholder”) and the circumstances of such Event of Default. Upon the expiration of a period of [***] thereafter, if the Event of Default is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall occur apply.
(b) If a Non-Defaulting Founding Shareholder has delivered a Continuing Default Notice in accordance with Section 18.2(a), then for so long as the specified Event of Default is continuing:
(i) if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex C (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex C (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex C (Acquisition of Ownership Interests) for any reason, whether voluntary or involuntarythen the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, and be continuingthen:
(A) during a [***] period following the delivery of the Continuing Default Notice, Holder maythe Founding Shareholders shall, upon notice or demandin good faith, declare discuss the outstanding Obligations under this Note to be due and payable, whereupon continuation of the outstanding Obligations under this Note shall be and become immediately due and payable, various Project Agreements between the Company and the Company shall immediately pay to Holder all such Obligations. Upon Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed Dow Founding Shareholder ceasing to be a contract made under Shareholder in the laws Company. Following such [***]period after the delivery of the State Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex C (Acquisition of New York Ownership Interests) shall apply.
(B) The Put Notice delivered by the Dow Founding Shareholder shall indicate:
(1) whether the Dow Founding Shareholder (and for all purposes / or its Qualifying Affiliates) shall be governed by, construed under, and enforced terminate the [***] in accordance with the laws terms therein;
(2) the price for the [***] applicable in accordance with Section 5.1 of the State of New York. Amendment and Waiver . Any term of this Note may be amended and [***];
(3) which [***] the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only Company has entered into with the written consent of Dow Founding Shareholder (and / or its Affiliates) relating to [***] that the Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and Holderthe Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex C (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests).
Appears in 1 contract
Consequences of Events of Default. (a) If any an Event of Default occurs, then any of the Shareholders who are not in default (collectively, the “Non-Defaulting Shareholders” and each a “Non-Defaulting Shareholder”) may deliver to the other Shareholders a Notice of the occurrence of such Event of Default, setting forth the identity of the Shareholder who is in default or to which the Event of Default relates (the “Defaulting Shareholder”) and the circumstances of such Event of Default. Upon the expiration of a period of [***] thereafter, if the Event of Default is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall occur apply.
(b) If a Non-Defaulting Founding Shareholder has delivered a Continuing Default Notice in accordance with Section 18.2(a), then for so long as the specified Event of Default is continuing:
(i) if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex D (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 84 - letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex D (Acquisition of Ownership Interests) for any reason, whether voluntary or involuntarythen the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, and be continuingthen:
(A) during a [***] period following the delivery of the Continuing Default Notice, Holder maythe Founding Shareholders shall, upon notice or demandin good faith, declare discuss the outstanding Obligations under this Note to be due and payable, whereupon continuation of the outstanding Obligations under this Note shall be and become immediately due and payable, various Project Agreements between the Company and the Company shall immediately pay to Holder all such Obligations. Upon Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (BY ITS EXECUTION HEREOF) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed Dow Founding Shareholder ceasing to be a contract made under Shareholder in the laws Company. Following such [***] period after the delivery of the State Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex D (Acquisition of New York Ownership Interests) shall apply.
(B) The Put Notice delivered by the Dow Founding Shareholder shall indicate:
(1) which [***] the Dow Founding Shareholder (and for all purposes / or its Qualifying Affiliates) shall be governed by, construed under, and enforced terminate in accordance with the laws terms therein;
(2) the price for the [***] applicable in accordance with Section 5.1 of the State of New York. Amendment and Waiver . Any term of this Note may be amended and [***];
(3) which [***] the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only Company has entered into with the written consent of Dow Founding Shareholder (and / or its Affiliates) relating to [***] [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 85 - [***] that the Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and Holderthe Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Call [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 86 - Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests).
(c) From the date of the completion of the transactions contemplated by Section 18.2(b)(i), Section 18.2(b)(ii), or Section 18.2(b)(iii), as the case may be:
(i) the Shareholders who are transferees of the Transferor shall assume in full, on a pro rata basis as between themselves, and at no cost to the Transferor or its Affiliates, all liabilities of the Transferor and its Affiliates in or related to such Transferor’s capacity as Shareholder, including all guarantees given or delivered by the Transferor or its Affiliates in such capacity, and:
(A) all Non-Transferring Shareholders shall release (and cause their Affiliates and the Company to release) the Transferor and its Affiliates from all liabilities in or related to the Transferor’s capacity as a Shareholder; and
(B) any guarantees delivered by the Transferor or its Affiliates shall immediately be deemed to have been terminated, provided that nothing in this Section 18.2(c)(i) shall affect any liabilities of the Transferor or its Affiliates in connection with any Principal Agreement to which it, or its Affiliate, is party, or any guarantees in respect thereof; and
(ii) the Transferor shall cease to be a Shareholder and shall cease to be a party to this Shareholders’ Agreement and, without prejudice to any rights or obligations that shall have accrued or become due prior to such date and the rights or remedies that any party may have in respect of any breach of this Shareholders’ Agreement prior to such date (other than any breach constituting the Event of Default leading to the Transfer), the Transferor shall cease to have any rights or obligations under this Shareholders’ Agreement except for those rights and obligations contained in, and the provisions of, Sections 1 (Definitions and Usage), 4.2 (Term and Termination of Shareholders’ Agreement; Survival), 14.1(g)-(h) (Books and Records) (in respect of the years during which the Transferor was a Shareholder), 15.6 (Non-Breach of Law), 17.5(a) (Principal Agreements), 19.3(e) (Transfers to Third Parties), 20.4 (Equity Rebalancing True-Up), 21 (Confidential Information), Section 22 (Indemnification and Liability), 24 (Dispute Resolution Procedures), 25 (Assignment), 26.2 (Binding Effect), 26.3 (Notices), 26.4 (Entire Agreement), 26.6 (Waivers) through 26.11 (Further Actions) (inclusive), 26.13 (Reliance), 26.14 (Prohibited Payments), 26.15 (Immunity), and Annex A (Dispute and Expert Resolution Procedures), which shall continue in force after the Transferor ceases to be a Shareholder.
(d) The completion of the transactions contemplated in Section 18.2(b) shall be the Non-Defaulting Shareholders’ (and their Affiliates’) and the Company’s sole and exclusive remedy in respect of all Losses arising (whether under this Shareholders’ Agreement, under Law, or otherwise) as a result of the events or circumstances connected with the Event of Default that is the subject of the relevant Continuing Default Notice (and the Non-Defaulting Shareholders shall not allow the Company to make any claim against the Defaulting Shareholder in relation to such events or circumstances), provided that nothing in this Section 18.2(d) shall prevent the Company from exercising any right it may have under any of the Principal Agreements. (e) The Shareholders agree that the Events of Default set out in Section 18.1 (Events of Default) are the sole and exclusive grounds upon which a Shareholder may terminate this Shareholders’ Agreement and the Shareholders agree to exclude, to the extent permissible, any right of termination arising under Applicable Law contrary to the terms hereof. Subject to the limitations set forth in Sections 18.2(c) and 18.2(d) and the immediately preceding sentence, if there is a breach of this Shareholders’ Agreement, then any Shareholder not in breach shall be free to exercise all rights and remedies that may be available to such Shareholder under this Shareholders’ Agreement or Applicable Law.
Appears in 1 contract
Sources: Shareholders' Agreement
Consequences of Events of Default. If (i) On and at any time after the occurrence of an Event of Default shall occur for any reasonDefault, whether voluntary or involuntarywhich is continuing, the Debenture Trustee may, in their discretion, and be continuing, Holder mayshall, upon request in writing of the holders of the Bonds of an amount representing not less than half in value of the nominal amount of the Bonds for the time being outstanding or by a Special Resolution duly passed at the meeting of the Bondholder(s) held in accordance with the provisions set out in Schedule II (Provisions for the Meeting of the Bondholder(s)) hereto by a notice or demandin writing to the Issuer initiate the following course of action, which notice the Issuer acknowledges herein as reasonable:
(ii) declare that the outstanding Obligations under this Note to Bonds shall automatically and without any further action, become due for redemption and all Interest amounts accrued and principal Amount payments be immediately due and payable, whereupon the outstanding Obligations under this Note they shall be and become immediately due and payable;
(iii) take all action or file any proceedings as permitted under Applicable Law for recovery of all principal Amount, and Interest amounts or other amount due under the Company shall immediately pay Transaction Documents;
(iv) stipulate such other conditions or amend any terms of the Transaction Documents as the Debenture Trustee considers necessary;
(v) restrict payment of commission in any year to Holder any person, by whatever name called exercising substantial powers of management, unless all such Obligations. Upon the occurrence dues of an actual the Debenture Trustee or deemed entry of an order for relief with respect Bondholders in that year have been paid to the Company under satisfaction of the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice Debenture Trustee;
(vi) to appoint a nominee director on the board of any kinddirectors of the Issuer on behalf of the Bondholders (“Nominee Director”) in the event of:
(a) 2 (Two) consecutive defaults in payment of interest to the Bondholders; or
(b) default in redemption of the Bonds. The Company agrees right to pay Holder all out-of-pocket costs and expenses incurred appoint the Nominee Director shall be exercised by Holder (including attorney's fees) the Debenture Trustee as per the statutory guidelines as may be applicable for the purpose, in connection consultation with the enforcement Bondholder(s). The Nominee Director so appointed shall not be liable to retire by rotation nor be required to hold any qualification shares. The Issuer shall take steps to amend its articles of association for the purpose, if necessary.
(vii) appoint any chartered accountants or protection of cost accountants as auditors to examine the financial or cost accounting system and procedures adopted by the Issuer for its rights in relation to this Note, including any suit, action, claim working or other activity of Holder to collect as concurrent or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any internal auditors; and
(viii) The Debenture Trustee may exercise such other rights which Holder as may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to applicable law. Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such mutilated Note, or in lieu of this Note being lost, stolen or destroyed, upon receipt of evidence satisfactory available to the Company of such loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY Debenture Trustee under Applicable Law including procedure lead down in SEBI Defaults (BY ITS EXECUTION HEREOFProcedure) AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed Circular as amended from time to be a contract made under the laws of the State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the laws of the State of New York. Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holdertime.
Appears in 1 contract
Sources: Debenture Trust Deed