Trigger Events. (a) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions: (i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and (ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include: (A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and (B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement. (b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions: (i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and (ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include: (A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; (B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement; (C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and (D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement. (c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions: (i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and (ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations. (d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10. (e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 2 contracts
Sources: Servicing Agreement, Servicing Agreement
Trigger Events. For purposes of this Section 4.04 (a) Ifand subject in all respects to Section 4.13), as rights, options or warrants distributed by the Issuer to all holders of the last day Issuer Class A Shares entitling them to subscribe for or purchase shares of any fiscal quarter beginning with the fiscal quarter ending [ ]Issuer’s Capital Stock, including Issuer Class A Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a Minimum Liquidity Warm specified event or events (“Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:Event”):
(i) permit Servicer Performance Guarantor are deemed to conduct additional inspections and/or audits, be transferred with such Issuer Class A Shares;
(ii) are not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewithexercisable; and
(iiiii) at Servicer’s expenseare also issued in respect of future issuances of the Issuer Class A Shares, enter into a subservicing agreement with a subservicer shall be deemed not to perform the obligations have been distributed for purposes of a “warm” subservicer, which obligations shall include:
this Section 4.04 (A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant and no adjustment to the Servicing Agreement and Conversion Rate under this Section 4.04 will be required) until the obligations occurrence of the Servicer earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Performance Guaranty within 90 days Section 4.04. If any such rights, options or warrants, including any such existing rights, options or warrants distributed prior to the date of receiving written notice the Note Purchase Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding sentence with respect thereto that was counted for purposes of calculating a Servicer Default distribution amount for which an adjustment to the Conversion Rate under this Section 4.04 was made, (1) in the Servicing Agreement; and
case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (A) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (B) receiving copies the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of a computer file from Servicer no later than 30 days following the end Issuer Class A Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, Issuer Class A Shares as of the last day date of any fiscal quarter beginning with the fiscal quarter ending [ ]such redemption or purchase, either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
and (i2) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) IfConversion Rate shall be readjusted as if such rights, a Default Trigger Event occurs options and has warrants had not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligationsissued.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (DiamondHead Holdings Corp.), Convertible Note Purchase Agreement (DiamondHead Holdings Corp.)
Trigger Events. (a) If, Each of the following events occurring as of or after the last day Effective Date shall constitute a “Trigger Event” for purposes of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionsthis Agreement:
(i) permit Servicer Performance the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to conduct additional inspections and/or auditsenter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewiththe Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(iivii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the obligations appointment of a “warm” subservicerreceiver, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations trustee, liquidator or custodian of the Servicer under this Performance Guaranty within 90 days Company, or of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurssubstantial part of its property or any of its Subsidiaries, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or auditsor an involuntary case or other proceeding seeking liquidation, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (reorganization or two Business Days other relief with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (Company or any subset thereof requested by the Servicer Performance Guarantor) pursuant of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction extent that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence of could reasonably be expected to have a Default Trigger EventMaterial Adverse Effect.
Appears in 2 contracts
Sources: Credit Support Agreement, Credit Support Agreement (Sunpower Corp)
Trigger Events. Each of the following shall be a “Trigger Event” with respect to this Note unless the Holder otherwise consents (including without limitation any approval from the board nominee of Holder (if any) and in the event no Holder nominee is then appointed on the board, then approval from the board observer appointed by Holder (if any), and in each case, any consent by such board nominee or board observer shall be deemed to be the consent of the Holder):
(a) If, as The Issuer fails to furnish to the Holder written notice of the last day occurrence and continuance of any fiscal quarter beginning Default or Event of Default under this Note promptly after becoming aware of such Default or Event of Default;
(b) The Issuer fails to provide the Holder with a copy of any notice of event of default provided to the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event Corporation or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer any of its Restricted Subsidiaries pursuant to take the Senior Secured Note Indenture promptly after receipt of such notice;
(c) the occurrence of any of the following actionsevents:
(i) permit Servicer Performance Guarantor the Issuer consolidates or merges with or into another Person (whether or not the Issuer is the surviving entity); provided that notwithstanding the foregoing, this Section 7 will not apply to conduct additional inspections and/or audits(i) any Subsidiary or Affiliate consolidating with, not more frequently than once during merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Issuer or to another Subsidiary, (ii) any 90-day period Change of Control or (iii) the Issuer merging with a wholly owned Subsidiary or Affiliate solely for the purpose and to reimburse Servicer Performance Guarantor for any reasonable invoiced out with the sole effect of pocket expenses reincorporating the Issuer in connection therewith; andanother jurisdiction;
(ii) any direct or indirect incurrence or Guarantee of Indebtedness by the Corporation, the Issuer or its consolidated Restricted Subsidiaries other than (1) any incurrence or Guarantee of Indebtedness permitted under the Senior Secured Note Indenture (as in effect as of the Signing Date) other than Sections 4.09(a), 4.09(b)(2), 4.09(b)(4), and 4.09(b)(20) of the Senior Secured Note Indenture (as in effect as of the Signing Date), (2) any Indebtedness under any Credit Facility (as defined in the Senior Secured Note Indenture (as in effect as of the Signing Date)), including letters of credit or banker’s acceptances issued or created thereunder, in an aggregate principal amount at Servicerany one time outstanding not to exceed $75 million, (3) this Note, (4) any other promissory note issued in connection with the Purchase Agreement, (5) any indenture governing senior notes issued by the Corporation (or to be issued by the Corporation after giving effect to any merger with any escrow entity), dated on or before [ ]2 (the “Issue Date Indenture”) and any senior notes issued thereunder, (6) to the extent that, on a pro forma basis, immediately after the incurrence of such Indebtedness (including a pro forma application of the net proceeds therefrom) the Consolidated Leverage Ratio for the Corporation’s expensemost recently ended four full fiscal quarters immediately preceding the date on which such additional Indebtedness is incurred would be greater than 4.5:1.0, enter and (7) any amendment, restatement, amendment and restatement, supplement, refinancing, replacement, extension or renewal or other modification of the Senior Secured Notes, the Senior Secured Note Indenture, the Issue Date Indenture and any senior notes issued thereunder, in each case, in any manner; provided, further that any such refinancing or amendment of such Senior Secured Notes (exclusive of any costs of the refinancing or amendment which may be incurred) does not increase the aggregate amount of outstanding Indebtedness of the Corporation on a dollar, not multiple, basis;
(iii) the Corporation makes or declare any Restricted Payment (as defined in clauses (i) and (ii) as set forth in the Senior Secured Note Indenture (as in effect as of the Signing Date)), other than Restricted Payments in the ordinary course of business and funded with the proceeds of internally generated cash flow of the Corporation and its Subsidiaries;
(iv) any change in the principal line of business or geographic focus of the Corporation other than an investment or credit assurance in China in the manner contemplated by the Purchase Agreement; provided that any investment by the Corporation in China exceeding 10% of its market capitalization at the time of such investment shall require approval of the board of the Corporation which must include approval from the board nominee of Holder (if any) and in the event no Holder nominee is then appointed on the board, then approval from the board observer appointed by Holder (if any); 2 NTD: To be initial Issue Date.
(v) any voluntary change in tax classification or corporate form by the Corporation or the Issuer; or
(vi) the Issuer or any Restricted Subsidiary, creates, incurs, assumes or permits to exist any Lien (as defined in the Senior Secured Note Indenture (as in effect as of the Signing Date)) on any property or asset now owned or hereafter acquired by the Corporation or any Restricted Subsidiary, other than as permitted by the Senior Secured Note Indenture (as in effect as of the Signing Date). Notwithstanding the foregoing, none of the following actions shall constitute a Trigger Event or be restricted or limited by or require any approval of the Holder (other than as set forth in Section 8(b)): (i) the Corporation and any of its controlled Affiliates entering into a subservicing agreement with a subservicer to perform joint ventures, partnerships or similar arrangements and funding the obligations same as described in Clause (D) of a “warm” subservicerthis paragraph, which obligations shall include:
so long as each such joint venture, partnership or similar arrangement is (A) an agreement by in respect of a single asset or a group of related assets (for the subservicer avoidance of doubt, a group of assets shall not be deemed to be related assets solely because they perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
same function), (B) receiving copies with third Persons, (C) on an arms’-length basis, (D) funded through the issuance of a computer file from Servicer no later than 30 days following equity in such joint venture, capital contributions in such joint venture and/or the end incurrence of each Monthly Periodunsecured Indebtedness or Indebtedness solely secured by the assets of such joint venture and/or the equity in such joint venture, confirming that and (E) for the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
purpose of (b1) If, as developing or expanding assets of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ]Corporation and such controlled Affiliates or (2) acquiring and developing new assets and growth opportunities, either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expensethe issuance of securities and capital contributions among the Corporation or any of its Restricted Subsidiaries, enter into a subservicing agreement with a subservicer to perform (iii) any Change of Control, (iv) any OCB Exception, (v) the obligations issuance of a “hot” subservicersecurities, which obligations shall include:
(A) an agreement by capital contributions or incurrence of intercompany Indebtedness among the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement Corporation and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar monthany joint ventures, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered partnerships or other minority owned entities in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (Corporation or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligationsits Restricted Subsidiaries have an equity or other interest.
(d) Servicer shall promptly the Issuer defaults in payment when due and duly execute payable of any principal, Prepayment Premium or Cash Interest due and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10payable on the Notes.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Series a Notes and Common Share Purchase Agreement (Akumin Inc.)
Trigger Events. (a) IfIn the event that either the CABO Investor exercises the Call Option or the GTCR Investors exercise the Put Right and (i) (y) the CABO Investor materially breaches its obligations or covenants in this Schedule B, as Schedule C or the Call / Put Merger Agreement or any other obligation or covenant in this Agreement relating to the Call Option or the Put Right, including the CABO Investor's failure to consummate the closing of the last day exercise of the Call Option or the Put Right if obligated to do so under the terms of this Agreement and the Call / Put Merger Agreement, and (z) if such breach or failure to perform is capable of being cured by the Outside Date, (1) the GTCR Investors have delivered to the CABO Investor written notice of such breach or failure to perform, and (2) such breach remains uncured for a period of thirty (30) days following the delivery of such written notice, or (ii) a Specified Insolvency Event occurs (each of the foregoing, a "Trigger Event"), the following will occur automatically, without any notice or action required on the part of any fiscal quarter beginning with the fiscal quarter ending [ ]Person, either a Minimum Liquidity Warm Trigger Event in addition to and without limiting other remedies at law or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionsin equity:
(i) permit Servicer Performance Guarantor The GTCR Investors shall immediately be entitled to conduct additional inspections and/or auditsapprove (without any consent or approval necessary by the CABO Investor), not more frequently than once during any 90-day period pursue, negotiate and to reimburse Servicer Performance Guarantor for any reasonable invoiced out effectuate a Sale of pocket expenses the Company as an Approved Sale, and exercise all rights in connection therewiththerewith as set forth in Section 8.10;
(ii) Notwithstanding anything to the contrary in Section 5.2, the CABO Investor shall immediately lose all rights to appoint any CABO Managers to the Board or any committee thereof and any similar rights with respect to the Company's Subsidiaries, and any CABO Managers then serving on the Board (or any such committees or any designees of the CABO Investor then serving on the governing body of any the Company's Subsidiaries) shall immediately be removed; and
(iiiii) at Servicer’s expenseThe CABO Investor shall no longer have any consent or approval rights under Section 5.8, enter into a subservicing agreement with a subservicer to perform the obligations Schedule A, or Section F of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.Schedule B.
(b) IfIn addition to the foregoing and without limiting any other remedies at law or in equity, as in the event that the CABO Investor fails to consummate the closing of the last day exercise of the Call Option or the Put Right if obligated to do so, the Unitholders holding Non-CABO Investor Units (including for this purpose any fiscal quarter beginning with Blocker Corporation and Participants) shall be entitled to receive an Option Preference Yield from the fiscal quarter ending [ ], either Company on their Non-CABO Investor Units (including for this purpose any Units held directly or indirectly by a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, Blocker Corporation that are not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement beneficially owned by the subservicer to perform the Guaranteed Servicer Obligations CABO Investor and payments pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(BLTIP, as applicable) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing AgreementSection 4.1(g)(i).
(c) IfIn the event that, following a Trigger Event, a Default Trigger Event occurs Sale of the Company, liquidation or other comparable transaction is consummated (each, an "Alternative Transaction") resulting in the holders of Non-CABO Units (the “Non-CABO Unitholders”), holders of Non-CABO Investor Blocker Interests and has not been cured after seven Business Days Participants receiving less than the Option Price in the aggregate, the GTCR Investors, each other Non-CABO Unitholder, each holder of Non-CABO Investor Blocker Interests and the Company (in the case of the Company, solely for the benefit of the Participants) shall, without limiting any monetary damages and all other rights and remedies available at law or two Business Days with respect equity, have the right to Servicer’s failure receive from the CABO Investor an amount equal to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out the amount in cash that such Person would have received upon the consummation of pocket costs and expenses in connection therewith; and
the exercise of the Call Option or the Put Right, as applicable, minus (ii) at Servicer’s expensethe amount of consideration actually received by such Person in such Alternative Transaction (clause (i) minus clause (ii), enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents“Residual Option Payment Amounts”), and take upon receipt of all such further actionResidual Option Payment Amounts from the CABO Investor, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer the Call Option and the Put Right shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10terminate.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cable One, Inc.)
Trigger Events. If any of the following events (each, a “Trigger Event”) shall occur and be continuing:
(a) If, as Any of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionsshall occur:
(i) permit Servicer Performance Guarantor any Transaction Party shall fail to conduct additional inspections and/or auditsmake any payment of Interest or Fees required to be made by it hereunder or under any other Transaction Document when due hereunder or thereunder, not more frequently or shall fail to deposit Collections (other than once during any 90-day period Deemed Collections) when such Collections are required to be deposited by it under a Transaction Document and such failure shall continue for two (2) Business Days after the earlier of written notice to reimburse Servicer Performance Guarantor for any reasonable invoiced out such Transaction Party or actual knowledge of pocket expenses in connection therewith; anda Responsible Officer of a Transaction Party;
(ii) at Servicer’s expenseany Transaction Party shall fail to make any deposit of Deemed Collections required to be made by it hereunder or under any Transaction Document to which it is a party when due hereunder or thereunder, enter into and such failure shall continue for two (2) Business Days after the earlier of written notice to such Transaction Party or a subservicing agreement with Responsible Officer of a subservicer Transaction Party having actual knowledge of such failure;
(iii) the Borrower shall fail to make any payment of principal on any Loan when due;
(iv) any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is party when due hereunder or thereunder, and such failure shall continue for ten (10) calendar days after the earlier of written notice to such Transaction Party or a Responsible Officer of a Transaction Party having actual knowledge of such failure;
(v) any Monthly Report or Supplemental Report shall not have been delivered within two (2) Business Days of the date when due; provided that if the failure to deliver such report results from a Force Majeure Event, the grace period in this clause shall be three (3) Business Days instead of two (2) Business Days;
(vi) any Interim Report shall not have been delivered within one (1) Business Day of the date when due; provided that, if the failure to deliver such report results from a Force Majeure Event, the grace period in this clause shall be two (2) Business Days instead of one (1) Business Day; or
(vii) during any calendar month more than two Interim Reports shall not have been delivered when due other than by reason of a Force Majeure Event not to exceed two weeks in duration;
(b) other than as addressed in Clauses 7.1(a) and 7.2(a), any Transaction Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Transaction Document to which such Transaction Party is a party and, if such failure relates to a Specified Provision and is capable of being remedied, such Transaction Party shall have failed to remedy such failure within fifteen (15) Business Days after the obligations earlier of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of such Transaction Party receiving written notice of such failure or a Responsible Officer of a Transaction Party having actual knowledge of such failure;
(c) an “Event of Default” shall occur under, and as defined in, the occurrence Senior Credit Agreement;
(d) the Administrative Agent, on behalf of the Secured Parties, shall, for any reason, fail or cease to have a valid and perfected first priority charge, security interest or pledge in the Collateral prior to all other interests, or there shall exist any Adverse Claims on such Collateral (except as arising under the Transaction Documents);
(e) a Servicer Default under the Servicing Agreement; andor Facility Termination Event shall occur;
(Bf) receiving copies other than as permitted by Clause 11.14 (Limitations on Addition and Termination of a computer file from Servicer no later than 30 days following Originators), any Change of Control shall occur with respect to Tribune or the Parent shall cease to own (i) directly 100% of the Equity Interests of the Borrower or (ii) directly or indirectly 100% of the Equity Interest of each Sub-Originator;
(g) the Percentage Factor exceeds the Maximum Percentage Factor on any Business Day, and such circumstance remains unremedied on the related Interim Settlement Date;
(h) as at the end of each Monthly any Calculation Period, confirming that (i) the information contained therein is readable and contains Three-Month Rolling Average Dilution Ratio-Broadcasting exceeds 3.0%, or (ii) the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.Three-Month Rolling Average Dilution Ratio – Publishing exceeds 7.0%;
(bi) Ifas at the end of any Calculation Period, the Three-Month Rolling Average Default Ratio exceeds 7%;
(j) as at the end of any Calculation Period, the Three-Month Rolling Average Delinquency Ratio exceeds 6.75%;
(k) at the end of any Calculation Period, (i) the Three-Month Rolling Average DSO-Broadcasting is greater than 120, or (ii) the Three-Month Rolling Average DSO – Publishing is greater than 75;
(l) any Transaction Party receives notice or becomes aware that a notice of lien has been filed against any Transaction Party under Section 430(k) of the last day IRC or Section 303(k) of ERISA for a failure to make a required installment or other payment to a plan to which Section 430(k) of the IRC or Section 303(k) of ERISA applies;
(m) for any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionsTest Period:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently the Interest Coverage Ratio is less than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; andthe Minimum Interest Coverage Ratio;
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hotTotal Guaranteed Leverage Ratio” subservicer, which obligations shall include:is more than the Maximum Total Guaranteed Leverage Ratio; or
(Aiii) an agreement by the subservicer to perform aggregate amount of Capital Expenditures is greater than the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing AgreementMaximum Capital Expenditures;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Trigger Events. (a) IfOn and after any date on which the Depositary Agent receives written notice from the Collateral Agent pursuant to Section 2.4(a) of the Intercreditor Agreement that a Trigger Event has occurred (the date of receipt of such notice, the "Trigger Event Day"), the Depositary Agent shall thereafter accept all notices and instructions required to be given to the Depositary Agent pursuant to the terms of this Depositary Agreement only from the Collateral Agent and not from any other Person and the Depositary Agent shall not withdraw, transfer, pay or otherwise distribute any moneys in any of the Funds except pursuant to such notices and instructions from the Collateral Agent.
(b) On the Trigger Event Date, the Depositary Agent shall (i) draw on the Debt Service Letter of Credit and deposit the proceeds thereof into the Debt Service Reserve Fund and (ii) render to the Collateral Agent an accounting of all moneys in the Funds as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Date.
(c) On and after the Trigger Event occursDate, Servicer Performance Guarantor may require Servicer the Depositary Agent shall (A) distribute all money then held in the Project Revenue Fund in accordance with clauses (i) through (vii) of Section 3.1(b) (except that it shall not make any withdrawal, transfer or payment in accordance with Section 3.1(b)(i) unless the Depositary Agent receives written notice from the Collateral Agent to take make such withdrawal, transfer or payment) and (B) make any or all of the following actionstransfers and withdrawals as directed in a notice from the Collateral Agent:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or auditsthe Trustee for redemption of the Bonds Outstanding in accordance with Section 7.3 of the Indenture, not more frequently than once during any 90-day period or if the maturity of the Bonds have been accelerated pursuant to Section 8.2 of the Indenture, for payment of the Bonds and to reimburse Servicer Performance Guarantor for each holder of Additional Permitted Debt, any reasonable invoiced out of pocket expenses moneys held in connection therewiththe Principal Account sub-funds, the Interest Account sub-funds, the Additional Permitted Debt Fund and the Debt Service Reserve Fund sub-funds, in each case, allocated to the Bonds and such Additional Permitted Debt, respectively; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations Trustee (for redemption of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered Bonds outstanding in accordance with the Servicing Agreement.
(b) If, as Section 7.3 of the last day Indenture or, if the maturity of the Bonds has been accelerated, for payment of the Bonds), and to the other Secured Parties, ratably, any fiscal quarter beginning with moneys held in the fiscal quarter ending [ ]Operating Fund, either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occursthe Overhaul Fund, Servicer Performance Guarantor may require Servicer to take the following actions:
Pollution Control Finance Fund, the Property Tax Fund, the Partnership Distribution Fund and the Restoration Fund and any moneys remaining in the Funds described in clause (i) permit Servicer Performance Guarantor above after making the withdrawals specified therein; provided that if the Depositary Agent has not received a notice authorizing the Depositary Agent to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses distribute all amounts in connection therewith; and
(iithe Project Revenue Fund as provided in Section 3.16(c)(A) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform from the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days Collateral Agent following the end of each calendar monthTrigger Event Date, confirming that the information contained therein is readable and contains Depositary Agent shall distribute all moneys then held in the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered Project Revenue Fund in accordance with the Servicing Agreement;
Section 3.1(b) (C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements except that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has it shall not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any paymentwithdrawal, transfer or deposit when requiredpayment in accordance with Section 3.1(b)(i)) after on each one-month anniversary of the date written Trigger Event Date until the Depositary Agent receives such notice thereof from the Collateral Agent and thereafter the Depositary Agent shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take follow the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses instructions set forth in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested such notice until notified otherwise by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer ObligationsCollateral Agent.
(d) Servicer Upon receipt from the Collateral Agent of any cash proceeds resulting from liquidation of the Collateral, the Depositary Agent shall promptly (i) first, deposit such cash proceeds resulting from liquidation of the Collateral into the Project Revenue Fund, (ii) second, pay to each of the Collateral Agent, the Trustee, the Credit Banks (if there is no agent(s) for the Credit Banks or, if there is an agent or agents for the Credit Banks, then the agent(s) for the Credit Banks) and duly execute and deliver any and all further instruments and documentsother trustees or agents that are Secured Parties under the Security Documents, and take such further actionthe Depositary Agent, that as the case may be necessary or desirable or that Servicer Performance Guarantor may request be, ratably, in an amount equal to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses the amounts due in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor respect of the occurrence Administrative Claims, the Collateral Agent Claims, the Trustee Claims and the Depositary Agent Claims, respectively, due and payable as of the date of such distribution; provided that, prior to any such distribution to any such Persons, the Depositary Agent shall have received a Default Trigger Eventcertificate signed by each such Person setting forth the amount payable to such Person as of the date of such distribution, including any supporting materials for such claims and (iii) third, distribute the balance of such proceeds in accordance with Section 3.16(c)(A).
Appears in 1 contract
Sources: Deposit and Disbursement Agreement (Panda Interfunding Corp)
Trigger Events. Each of the following events shall constitute a “Trigger Event” immediately upon Apple giving GTAT notice of the occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(a) Ifif Apple has given GTAT notice of one or more breaches under the SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (US$100,000,000) or more;
(b) any breach by GTAT of Section 2 or 4 of this Agreement;
(c) termination of the SOW by Apple for Cause (as defined in the SOW);
(d) any indebtedness of GTAT or Supplier Affiliate in excess of One Hundred Million US Dollars (US$100,000,000) (“Material Debt”) in the aggregate is accelerated, or the holder (i.e., creditor) or holders of Material Debt or any trustee or agent on its or their behalf, pursuant to their rights under the applicable debt instrument, cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to their maturity because the stock of GT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(e) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the MDSA or SOW for any or no reason;
(f) if GTAT or any Supplier Affiliate is subject to an Insolvency Proceeding or if an Insolvency Proceeding is filed against GTAT or any Supplier Affiliate and, if such Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days;
(g) if any Transaction Document shall have not been executed or becomes invalid or unenforceable in its entirety;
(h) if as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ of GTAT, [***], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:;
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, if as of the last day of any fiscal quarter beginning with of GTAT, [***];
(j) if the Projections show a Cash Balance of less than [***] at the end of the six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of any of the following have occurred at the end of any fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take of GTAT and both are continuing forty-five (45) days following the following actionsend of that fiscal quarter:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; andthe Consolidated Cash Balance is below ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;following fiscal quarter; or
(Ciii) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer Consolidated DPO is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations70 days.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Prepayment Agreement (GT Advanced Technologies Inc.)
Trigger Events. Each of the following events shall constitute a “Trigger Event” immediately upon Apple giving GTAT notice of the occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(a) Ifif Apple has given GTAT notice of one or more breaches under the SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (US$100,000,000) or more;
(b) any breach by GTAT of Section 2 or 4 of this Agreement;
(c) termination of the SOW by Apple for Cause (as defined in the SOW);
(d) any indebtedness of GTAT or Supplier Affiliate in excess of One Hundred Million US Dollars (US$100,000,000) (“Material Debt”) in the aggregate is accelerated, or the holder (i.e., creditor) or holders of Material Debt or any trustee or agent on its or their behalf, pursuant to their rights under the applicable debt instrument, cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to their maturity because the stock of GT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(e) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the MDSA or SOW for any or no reason; [***] Portions of this exhibit have been redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission
(f) if GTAT or any Supplier Affiliate is subject to an Insolvency Proceeding or if an Insolvency Proceeding is filed against GTAT or any Supplier Affiliate and, if such Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days;
(g) if any Transaction Document shall have not been executed or becomes invalid or unenforceable in its entirety;
(h) if as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ of GTAT, [***], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:;
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, if as of the last day of any fiscal quarter beginning with of GTAT, [***];
(j) if the Projections show a Cash Balance of less than [***] at the end of the six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of any of the following have occurred at the end of any fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take of GTAT and both are continuing forty-five (45) days following the following actionsend of that fiscal quarter:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; andthe Consolidated Cash Balance is below ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;following fiscal quarter; or
(Ciii) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer Consolidated DPO is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations70 days.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Prepayment Agreement
Trigger Events. (a) If, Each of the following events occurring as of or after the last day Effective Date shall constitute a “Trigger Event” for purposes of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionsthis Agreement:
(i) permit Servicer Performance the Company defaults with respect to (A) its reimbursement obligations under Section 3(c) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to conduct additional inspections and/or auditsenter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewiththe Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(iivii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the obligations appointment of a “warm” subservicerreceiver, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations trustee, liquidator or custodian of the Servicer under this Performance Guaranty within 90 days Company, or of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurssubstantial part of its property or any of its Subsidiaries, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or auditsor an involuntary case or other proceeding seeking liquidation, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (reorganization or two Business Days other relief with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (Company or any subset thereof requested by the Servicer Performance Guarantor) pursuant of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction extent that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence of could reasonably be expected to have a Default Trigger EventMaterial Adverse Effect.
Appears in 1 contract
Trigger Events. If any Trigger Event shall have occurred and be continuing:
(a) Ifthe Collateral Agent shall have the rights and the obligations with respect to this Agreement as more particularly provided in the Intercreditor Agreement;
(b) the Pledgor shall, as at the request of the last day Collateral Agent, assemble the Collateral owned by it at such place or places, reasonably convenient to both the Collateral Agent and the Pledgor, designated in its request;
(c) the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by applicable law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right);
(d) the Collateral Agent may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms, of any fiscal quarter beginning with of the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:Collateral;
(ie) permit Servicer Performance Guarantor to conduct additional inspections and/or auditsthe Collateral Agent in its discretion may, not more frequently than once during in its name or in the name of the Pledgor or otherwise, demand, sue ▇▇▇, collect or receive any 90-day period and to reimburse Servicer Performance Guarantor money or property at any time payable or receivable on account of or in exchange for any reasonable invoiced out of pocket expenses in connection therewiththe Collateral, but shall be under no obligation to do so; and
(iif) the Collateral Agent may, upon ten Business Days' prior notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Collateral Agent, the other Secured Parties or any of their respective agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at Servicer’s expensesuch place or places as the Collateral Agent deems best, enter into a subservicing agreement and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Collateral Agent or any other Secured Party or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the maximum extent permitted by applicable law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Pledgor, any such demand, notice and right or equity being hereby expressly waived and released to the maximum extent permitted by applicable law. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. The proceeds of each collection, sale or other disposition under this Section 5.5 shall be applied in accordance with Section 5.8 hereof. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant view to the Servicing Agreement distribution or resale thereof. The Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of Collateral Agent than those obtainable through a Servicer Default under the Servicing Agreement; public sale without such restrictions, and
(B) receiving copies of , notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming commercially reasonable manner and that the information contained therein is readable Collateral Agent shall have no obligation to engage in public sales and contains no obligation to delay the information sale of any Collateral for the period of time necessary to permit the subservicer respective issuer thereof to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreementregister it for public sale.
(b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Trigger Events. If any Trigger Event shall have occurred and be continuing: 13 -12-
(a) Ifthe Collateral Agent shall have the rights and the obligations with respect to this Agreement as more particularly provided in the Intercreditor Agreement;
(b) the Pledgor shall, as at the request of the last day Collateral Agent, assemble the Collateral owned by it at such place or places, reasonably convenient to both the Collateral Agent and the Pledgor, designated in its request;
(c) the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by applicable law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right);
(d) the Collateral Agent may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms, of any fiscal quarter beginning with of the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:Collateral;
(ie) permit Servicer Performance Guarantor to conduct additional inspections and/or auditsthe Collateral Agent may, not more frequently than once during in its name or in the name of the Pledgor or otherwise, demand, sue ▇▇▇, collect or receive any 90-day period and to reimburse Servicer Performance Guarantor money or property at any time payable or receivable on account of or in exchange for any reasonable invoiced out of pocket expenses in connection therewiththe Collateral, but shall be under no obligation to do so; and
(iif) the Collateral Agent may, upon ten Business Days' prior notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Collateral Agent, the other Secured Parties or any of their respective agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at Servicer’s expensesuch place or places as the Collateral Agent deems best, enter into a subservicing agreement and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Collateral Agent or any other Secured Party or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the maximum extent permitted by applicable law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Pledgor, any such demand, notice and right or equity being hereby expressly waived and released to the maximum extent permitted by applicable law. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. The proceeds of each collection, sale or other disposition under this Section 5.5 shall be applied in accordance with Section 5.8 hereof. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant view to the Servicing Agreement distribution or resale thereof. The Pledgor acknowledges that any such private sale may be at prices and on terms less favorable to the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of Collateral Agent than those obtainable through a Servicer Default under the Servicing Agreement; public sale without such restrictions, and
(B) receiving copies of , notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming commercially reasonable manner and that the information contained therein is readable Collateral Agent shall have no obligation to engage in public sales and contains no obligation to delay the information sale of any Collateral for the period of time necessary to permit the subservicer respective issuer thereof to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreementregister it for public sale.
(b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Trigger Events. (a) If, at any time, a Trigger Event with respect to any Test Month or Date of Reconciliation shall have occurred, the Beneficiaries shall have the option (such option, a “Termination Option”) to terminate any one IA Lease (such IA Lease, the “Original Selected Lease”) selected by the Beneficiaries in their sole discretion. Any such termination shall occur on the Business Day which is the first Business Day to occur on or next following the forty-fifth (45th) day (any such day, a “Termination Date”) following the delivery of written notice (a “Termination Notice”) to Lessee. In order to exercise a Termination Option (it being understood that a Termination Option may be exercised each time that a Trigger Event occurs with respect to a Test Month or a Date of Reconciliation (if no Termination Notice has previously been given for such Test Month), as the case may be, and therefore up to eight Trigger Events could occur pursuant to this Agreement), the Applicable Beneficiary must deliver a Termination Notice to Lessee (i) with respect to any Test Month with respect to which a Trigger Event occurs, within ninety (90) days after the receipt by GECC of the information relating to such Test Month required to be delivered to it by Lessee pursuant to Section 2.2 or (ii) with respect to any Date of Reconciliation, within ninety (90) days after the Date of Recalculation relating to such Date of Reconciliation (the last day of any fiscal quarter beginning such ninety (90) day period, the “Cut-off Date”). Such Termination Notice shall reference the Test Month or the Date of Reconciliation, as the case may be, with the fiscal quarter ending [ ], either a Minimum Liquidity Warm respect to which such Trigger Event or a Tier 1 Capital Warm Trigger Event occursoccurred and shall identify the Original Selected Lease and the applicable Termination Date. Any such Termination Notice delivered by an Applicable Beneficiary shall be irrevocable, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement unless otherwise agreed by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing AgreementLessee.
(b) IfAt any time during the term of this Agreement, as the Obligors agree, immediately upon request by one or more Beneficiaries, to negotiate in good faith with such Beneficiaries and the other applicable parties an omnibus amendment agreement (an “OAA”) relating to an Original Selected Lease with a goal of entering into such OAA on or before the occurrence of the last day of any fiscal quarter beginning with Cut-Off Date relating to the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event giving rise to a Termination Option. Any such OAA shall contemplate the termination of such Original Selected Lease on the Termination Date specified, or a Tier 1 Capital Hot to be specified, in the Termination Notice delivered, or to be delivered, in connection with such Trigger Event occursEvent. Each OAA entered into pursuant hereto shall be on substantially the same terms as provided for in the Existing Early Termination Agreement, Servicer Performance Guarantor may require Servicer to take the following actions:
except that (i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period the effective date for the early termination of the applicable Original Selected Lease shall be the Termination Date referenced in the applicable Termination Notice and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement other than with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant respect to the Servicing Agreement and the obligations of the Servicer IA Lease identified in position 1 on Schedule II, references to make whole will be changed to breakage such that Lessee shall have no liability for breakage under this Performance Guaranty within 45 days of receiving written notice of § 3(c) (except following the occurrence of a Servicer Default under the Servicing Agreement;
(Ban event of loss) receiving copies or § 15 of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreementsuch Original Selected Lease.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect Each of the Obligors agrees to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any to the Beneficiaries such further documents and all further instruments and documents, assurances and take such further action, that may action as any such Beneficiary from time to time reasonably requests in order to carry out more effectively the intent of this Agreement and to establish and protect the rights created or intended to be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for created in favor of any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10such Beneficiary hereunder.
(ed) Servicer With respect to each ACAH Guaranty (as respectively defined in each IA Lease) provided by the Guarantor, although such Guaranty provides that the Guarantor’s obligations shall promptlynot be affected by any amendment, and in modification or other change in, or supplement to, any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger EventGuaranteed Documents (as defined in such ACAH Guaranty) or any other agreement, the Guarantor nevertheless confirms and agrees that such ACAH Guaranty shall remain in full force and effect after giving effect to this Agreement and any termination effected pursuant hereto.
Appears in 1 contract
Sources: Milestone Agreement (Flyi Inc)
Trigger Events. (a) IfIf at any time (i) Parent or AIG Life Holdings no longer meets the Collateralization Rating Criteria or (ii) AIG Life Holdings fails to make any payment of principal or interest, and applicable grace periods have lapsed, with respect to the AIGLH Notes, and, in the case of this clause (ii), a holder (or holders acting collectively) of any AIGLH Note has the right to make a claim under any guarantee pursuant to the Indentures or the Guarantees against the Guarantor (each of the events described in clauses (i) and (ii), a “Collateral Trigger Event”), then the Pledgors shall promptly (and in no event more than two (2) Business Days following such Collateral Trigger Event) deposit Eligible Collateral in the Collateral Account in an amount equal to the Trigger Event Collateral Amount as of the last day time of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Collateral Trigger Event or a Tier 1 Capital Warm and the Pledgors shall at all times thereafter maintain Fair Market Value of Eligible Collateral in the Collateral Account at least equal to the Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take Collateral Amount; provided that if Parent and AIG Life Holdings subsequently meet the Collateralization Rating Criteria following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under Collateral Trigger Event pursuant to clause (i), then the Servicing Agreement; and
Pledgors may request the consent (B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required not to be delivered in accordance with unreasonably withheld, conditioned or delayed) of the Servicing AgreementGuarantor to withdraw Eligible Collateral from the Collateral Account.
(b) If, as of If at any time after the last day of any fiscal quarter beginning Pledgors deposit funds in connection with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Collateral Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with this Section 3, the Servicing Agreement;
Guarantor determines, acting reasonably, that the Fair Market Value of the Eligible Collateral is less than the Trigger Event Collateral Amount at such time, the Pledgors shall, upon demand, within five (C5) completing trial conversions to transfer the data contained Business Days deposit sufficient additional Eligible Collateral in the computer file described above to Collateral Account so that the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to Fair Market Value of the Servicing Agreement.
(c) If, a Default Eligible Collateral shall at least equal the Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) Collateral Amount at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligationssuch time.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Trigger Events. (a) If, as On and after the time that the Depositary receives written notice from the Collateral Agent (acting at the direction of the last day Administrative Agent) that an Event of Default has occurred and is continuing (any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger such continuing Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer of Default shall be referred to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of as a “warmTrigger Event,” subservicerand the date of the Depositary’s receipt of such notice, which obligations a “Trigger Date”), notwithstanding anything to the contrary contained herein, the Depositary shall include:
(A) an agreement by thereafter accept all notices and instructions required or permitted to be given to the subservicer to perform the Guaranteed Servicer Obligations Depositary pursuant to the Servicing terms of this Agreement with respect to a Project Account only from the Collateral Agent (acting at the direction of the Administrative Agent) and not from the Borrower or any other Person, and the obligations Depositary shall not withdraw, transfer, pay or otherwise distribute any monies in any of the Servicer under this Performance Guaranty within 90 days of receiving Project Accounts except pursuant to such notices and instructions from the Collateral Agent unless the Depositary receives written notice from the Collateral Agent (acting at the direction of the occurrence of a Servicer Default under the Servicing Agreement; and
(BAdministrative Agent) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains applicable Event of Default has been waived, cured or otherwise no longer exists (the information necessary to permit date of receipt of such notice, the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement“Trigger End Date”).
(b) IfIf requested in writing to do so by the Administrative Agent or the Collateral Agent (in either case, acting at the direction of the Required Lenders) following a Trigger Date, within three (3) Business Days of such request, the Depositary shall render an accounting of all monies in the Project Accounts as of such Trigger Date to the Administrative Agent or the Collateral Agent, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ]applicable, either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant copy to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing AgreementBorrower.
(c) IfDuring any Default Period, a Default Trigger Event occurs and has not been cured after seven Business Days notwithstanding anything herein to the contrary (but without limiting any of the Secured Parties’ rights or remedies hereunder or under the other Security Documents), the Collateral Agent (or two Business Days with respect the Depositary at the Collateral Agent’s written direction) shall be permitted (acting at the direction of the Administrative Agent) to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out instruct the liquidation or making of pocket costs and expenses in connection therewith; and
Permitted Account Investments, (ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which direct the subservicer shall agree to perform disposition of the Guaranteed Servicer Obligations funds in each of the Project Accounts and (or any subset thereof requested by the Servicer Performance Guarantoriii) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations pay interest and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any principal and all further instruments other Obligations then due and documentspayable in accordance with the priorities set forth in Section 9.2, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection each instance in accordance with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor the terms of the occurrence of a Default Trigger EventLoan Documents.
Appears in 1 contract
Sources: Collateral Agency, Security and Depositary Agreement (Applied Digital Corp.)
Trigger Events. (a) IfIn the event that any holder of shares of Series A Preferred Stock does not participate in a Qualified Financing (as defined below) by purchasing in the aggregate, in such Qualified Financing and within the time period specified by the Corporation (provided that the Corporation has sent to each holder of Series A Preferred Stock at least 10 days written notice of, and the opportunity to purchase its Pro Rata Amount (as defined below) of, the Qualified Financing), such holder’s Pro Rata Amount, then each share of Series A Preferred Stock held by such holder shall automatically, and without any further action on the part of such holder, be converted into shares of Common Stock at the Series A Conversion Price in effect immediately prior to the consummation of such Qualified Financing, effective upon, subject to, and concurrently with, the consummation of the last day Qualified Financing. For purposes of any fiscal quarter beginning determining the number of shares of Series A Preferred Stock owned by a holder, and for determining the number of Offered Securities (as defined below) a holder of Series A Preferred Stock has purchased in a Qualified Financing, all shares of Series A Preferred Stock held by Affiliates (as defined below) of such holder shall be aggregated with such holder’s shares and all Offered Securities purchased by Affiliates of such holder shall be aggregated with the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event Offered Securities purchased by such holder (provided that no shares or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer securities shall be attributed to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during one entity or person within any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out such group of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreementaffiliated entities or persons).
(b) If, as In the event that any holder of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer Series A Preferred Stock who is required to deliver pursuant purchase shares of the Corporation’s Series A Preferred Stock in the Milestone Closings (as defined in the Purchase Agreement) fails to purchase the Milestone Shares (as defined in the Purchase Agreement), such holder of Series A Preferred Stock is required to purchase under the Purchase Agreement, then the outstanding shares of Series A Preferred Stock held by such holder shall, immediately upon the applicable Milestone Closing at which such holder does not purchase the required number of shares, be converted into that number of shares of Common Stock equal to the Servicing Agreementproduct of (a) the number of shares of Common Stock such shares of Series A Preferred Stock are convertible into immediately following such Milestone Closing, multiplied by (b) 0.10.
(c) If, The conversions referred to in Sections 5A.1(a) and 5A.1(b) are referred to herein as a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations“Special Mandatory Conversion.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.”
Appears in 1 contract
Trigger Events. Each of the following events shall constitute a “Trigger Event” immediately upon Apple giving GTAT notice of the occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(a) Ifif Apple has given GTAT notice of one or more breaches under the SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (US$100,000,000) or more;
(b) any breach by GTAT of Section 2 or 4 of this Agreement;
(c) termination of the SOW by Apple for Cause (as defined in the SOW);
(d) any indebtedness of GTAT or Supplier Affiliate in excess of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$100,000,000) (“Material Debt”) in the aggregate is accelerated, or the holder (i.e., creditor) or holders of Material Debt or any trustee or agent on its or their behalf, pursuant to their rights under the applicable debt instrument, cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to their maturity because the stock of GT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(e) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the MDSA or SOW for any or no reason;
(f) if GTAT or any Supplier Affiliate is subject to an Insolvency Proceeding or if an Insolvency Proceeding is filed against GTAT or any Supplier Affiliate and, if such Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days;
(g) if any Transaction Document shall have not been executed or becomes invalid or unenforceable in its entirety;
(h) if as of the last day of any fiscal quarter beginning with of GTAT, the fiscal quarter ending [ sum of [***] and [***] was equal to or greater than [***], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take % of the following actions:cumulative Supply Commitment [***] (as described in Section 9.7.1 of the SOW) during the prior [***] period and the Consolidated Cash Balance is below [***];
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following the end of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, if as of the last day of any fiscal quarter beginning with of GTAT, the fiscal quarter ending [ sum of [***] and [***] was less than [***], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take % of the following actions:
(i) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once cumulative Supply Commitment [***] during any 30-day the prior [***] period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing AgreementConsolidated Cash Balance is below [***];
(Bj) receiving copies if the Projections show a Cash Balance of a computer file from Servicer no later less than 7 [***] at the end of the six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of any of the following have occurred at the end of any fiscal quarter of GTAT and both are continuing forty-five (45) days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary fiscal quarter: [***] Portions of this exhibit have been redacted pursuant to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing AgreementCommission.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; andthe Consolidated Cash Balance is below ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform end of the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.following fiscal quarter; or
(diii) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10Consolidated DPO is more than 70 days.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Prepayment Agreement (GT Advanced Technologies Inc.)
Trigger Events. (a) If, as The occurrence of any of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either following events shall constitute a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actionshereunder:
(i) permit the Seller, the Servicer Performance Guarantor or the Depositor, as the case may be, shall fail to conduct additional inspections and/or auditspay when due any amount payable by it hereunder, not more frequently than once during any 90-day period or under the Indenture or the Sale and to reimburse Servicing Agreement, which failure shall continue for two (2) Business Days after receipt of notice thereof by the Seller, the Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; andor the Depositor, as the case may be;
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform an "Event of Servicing Termination" occurs under the obligations Sale and Servicing Agreement or an "Event of a “warm” subservicer, which obligations shall include:Default" occurs under the Indenture;
(Aiii) an agreement any representation or warranty made by the subservicer Seller, the Servicer or the Depositor in any of the Transaction Documents proves to perform have been false or misleading in any material respect as of the Guaranteed Servicer Obligations pursuant to date made;
(iv) the Servicing Agreement and Insurer reasonably determines that the obligations performance of the Servicer under this Performance Guaranty within 90 days the Sale and Servicing Agreement is not in compliance with Servicing Standards, which failure shall continue for 10 Business Days from the receipt of receiving written notice thereof by the Servicer;
(v) the Seller, the Servicer or the Depositor shall have materially breached any covenant or agreement contained herein or in the Sale and Servicing Agreement, which breach shall continue for 10 Business Days after the receipt of notice thereof by the breaching party;
(vi) the occurrence of an Insolvency Event with respect to the Servicer, the Seller, the Depositor or the Trust;
(vii) the security interests, as defined in the UCC, of the Indenture Trustee in the Collateral shall cease to be effective or shall cease to be a Servicer Default first priority perfected security interest (subject to liens permitted under the Servicing Agreement; andTransaction Documents);
(Bviii) receiving copies of a computer file from Servicer no later than 30 days the Rolling 3-Month Delinquency Rate shall exceed % with respect to any Distribution Date in the first months following the end Closing Date, and % thereafter;
(ix) a Cumulative Net Loss Trigger Event shall have occurred; or
(x) subject to Section 7.03 hereof, any of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required Transaction Documents or any other agreement ancillary or incidental thereto shall cease to be delivered in accordance with the Servicing Agreementfull force and effect.
(b) If, as of Upon the last day occurrence of any fiscal quarter beginning with Trigger Event, the fiscal quarter ending [ ]Insurer, either a Minimum Liquidity Hot Trigger Event so long as no Insurer Default has occurred or a Tier 1 Capital Hot Trigger Event occursis continuing, Servicer Performance Guarantor may require Servicer to take the following actionsmay:
(i) permit Servicer Performance Guarantor inform the Indenture Trustee, the Owner Trustee and each Rating Agency in writing or by facsimile transmission of the occurrence of any Trigger Event and of any other information the Insurer may have with respect to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out the performance of pocket expenses in connection therewith; andthe Servicer;
(ii) at Servicer’s expense, enter into instruct the Owner Trustee in writing or by facsimile transmission to deliver a subservicing agreement with a subservicer to perform notice of termination of all the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement rights and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of to the occurrence of Servicer and appoint a successor Servicer Default under as designated by the Insurer, in accordance with the Sale and Servicing Agreement;
(Biii) receiving copies of a computer file from Servicer no later than 7 days following instruct the end of each calendar monthServicer, confirming that the information contained therein is readable Owner Trustee, the Indenture Trustee and contains the information necessary successor Servicer, if any, in writing or by facsimile transmission to permit intercept all payments made under the subservicer Receivables by Obligors and redirect such payments directly to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing AgreementCollection Account;
(Civ) completing trial conversions receive delivery from the Servicer to transfer the Insurer or direct delivery by the Servicer to the successor Servicer designated by the Insurer, of the Receivable Files and all data contained and material necessary for the immediate servicing and collection of the Receivables by the Insurer or the successor Servicer designated by the Insurer;
(v) instruct the Indenture Trustee and/or the Trust to amend title documents and do such other acts to the extent necessary to perfect the Trust's security interest in the computer file described above to the subservicer’s servicing systemFinanced Vehicles; and
(Dvi) recalculating all monthly noteholder statements that Servicer is required cause the Required Reserve Account Amount to deliver pursuant be equal to the Servicing Agreement.
(c) If, a Default Trigger Event occurs and has not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing AgreementPolicy Amount. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.ARTICLE VII
Appears in 1 contract
Sources: Insurance and Reimbursement Agreement (Pooled Auto Securities Shelf LLC)
Trigger Events. For purposes of this Section 4.04 (a) Ifand subject in all respects to Section 4.13), as rights, options or warrants distributed by the Issuer to all holders of the last day Issuer Class A Shares entitling them to subscribe for or purchase shares of any fiscal quarter beginning with the fiscal quarter ending [ ]Issuer’s Capital Stock, including Issuer Class A Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a Minimum Liquidity Warm specified event or events (“Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:Event”):
(i) permit Servicer Performance Guarantor are deemed to conduct additional inspections and/or audits, be transferred with such Issuer Class A Shares;
(ii) are not more frequently than once during any 90-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewithexercisable; and
(iiiii) at Servicer’s expenseare also issued in respect of future issuances of the Issuer Class A Shares, enter into a subservicing agreement with a subservicer shall be deemed not to perform the obligations have been distributed for purposes of a “warm” subservicer, which obligations shall include:
this Section 4.04 (A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant and no adjustment to the Servicing Agreement and Conversion Rate under this Section 4.04 will be required) until the obligations occurrence of the Servicer earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Performance Guaranty within 90 days Section 4.04. If any such rights, options or warrants, including any such existing rights, options or warrants distributed prior to the date of receiving written notice the Note Purchase Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding sentence with respect thereto that was counted for purposes of calculating a Servicer Default distribution amount for which an adjustment to the Conversion Rate under this Section 4.04 was made, (1) in the Servicing Agreement; and
case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (A) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (B) receiving copies the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of a computer file from Servicer no later than 30 days following the end Issuer Class A Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of each Monthly Period, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement.
(b) If, Issuer Class A Shares as of the last day date of any fiscal quarter beginning with the fiscal quarter ending [ ]such redemption or purchase, either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
and (i2) permit Servicer Performance Guarantor to conduct additional inspections and/or audits, not more frequently than once during any 30-day period and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by the subservicer to perform the Guaranteed Servicer Obligations pursuant to the Servicing Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies of a computer file from Servicer no later than 7 days following the end of each calendar month, confirming that the information contained therein is readable and contains the information necessary to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreement.
(c) IfConversion Rate shall be readjusted as if such rights, a Default Trigger Event occurs options and has warrants had not been cured after seven Business Days (or two Business Days with respect to Servicer’s failure to make any payment, transfer or deposit when required) after the date written notice thereof shall have been received by Servicer, Servicer Performance Guarantor may require Servicer to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not more than two additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (or any subset thereof requested by the Servicer Performance Guarantor) pursuant to the Servicing Agreementissued. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (United Homes Group, Inc.)
Trigger Events. (a) IfOn the date hereof, as of the last day of any fiscal quarter beginning Warrant Certificates duly executed by the Company shall be delivered to the Warrant Agent together with a written order directing the fiscal quarter ending [ ], either a Minimum Liquidity Warm Trigger Event or a Tier 1 Capital Warm Trigger Event occurs, Servicer Performance Guarantor may require Servicer Warrant Agent to take the following actionshold such Warrants Certificates until either:
(i) permit Servicer Performance Guarantor the Warrant Agent has received a First Trigger Event Notice or a Second Trigger Event Notice from the Agent, upon receipt of which the Warrant Agent shall be authorized to conduct additional inspections and/or audits, not more frequently than once during any 90-day period promptly countersign and deliver one of the two Warrant Certificates in the name of each Lender to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses in connection therewithsuch Lender; andor
(ii) at Servicer’s expense, enter into a subservicing agreement with a subservicer to perform the obligations of a “warm” subservicer, which obligations shall include:
(A) an agreement by Warrant Agent has received written notice from the subservicer to perform Agent certifying that the Guaranteed Servicer Obligations pursuant to the Servicing Agreement First Trigger Event Date and the obligations of the Servicer under this Performance Guaranty within 90 days of receiving written notice of Second Trigger Event Date have passed without the occurrence of a Servicer Default under the Servicing Agreement; and
(B) receiving copies of a computer file from Servicer no later than 30 days following First Trigger Event or the end of each Monthly PeriodSecond Trigger Event, confirming that as applicable, in which case the information contained therein is readable and contains Warrant Agent shall return the information necessary Warrant Certificates to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing AgreementCompany.
(b) If, as of the last day of any fiscal quarter beginning with the fiscal quarter ending [ ], either a Minimum Liquidity Hot Trigger Event or a Tier 1 Capital Hot Trigger Event occurs, Servicer Performance Guarantor may require Servicer to take the following actions:
If (i) permit Servicer Performance Guarantor on or before October 31, 2001 the Borrowers shall have failed to conduct additional inspections and/or audits, not more frequently than once during any 30-day period prepay the Term Loans and to reimburse Servicer Performance Guarantor for any reasonable invoiced out of pocket expenses permanently reduce the Revolving Loan Commitment Amount (and prepay the Revolving Loans in connection therewith; and
with such reduction to the extent required pursuant to the Loan Agreement), each on a pro rata basis by a cash amount equal to $50,000,000 from the proceeds of events described in Section 6.03(a)(iii) of the Loan Agreement and (ii) at Servicer’s expenseon or before January 31, enter into a subservicing agreement with a subservicer 2002 (the "FIRST TRIGGER EVENT DATE"), the Borrowers shall have failed to perform the obligations of a “hot” subservicer, which obligations shall include:
(A) an agreement by prepay the subservicer Term Loans and permanently reduce the Revolving Loan Commitment Amount (and prepay the Revolving Loans in connection with such reduction to perform the Guaranteed Servicer Obligations extent required pursuant to the Servicing Loan Agreement), each on a pro rata basis by a cash amount equal to $50,000,000 from the proceeds of events described in Section 6.03(a)(iii) of the Loan Agreement and the obligations of the Servicer under this Performance Guaranty within 45 days of receiving written notice of the occurrence of a Servicer Default under the Servicing Agreement;
(B) receiving copies generate or receive an additional $50,000,000 in cash from either (1) Net Asset Sale Proceeds or (2) a contribution by the Company to one or more Borrowers of cash proceeds consisting of additional equity or cash from Data Holdco or its Subsidiaries or any other source, in the case of clauses (b)(ii)(B)(1) and (b)(ii)(B)(2) over and above, and in addition to, any amounts previously applied to prepay the Loans under the Loan Agreement pursuant to clauses (b)(i) and (b)(ii)(A) above (the "FIRST TRIGGER EVENT"), the Agent shall at any time after the First Trigger Event Date deliver a computer file from Servicer no later than 7 days following notice to the end Warrant Agent in the form set forth in EXHIBIT B hereto (the "FIRST TRIGGER EVENT NOTICE"), indicating that the First Trigger Event has occurred and directing the Warrant Agent to countersign and deliver one of the two Warrant Certificates in the name of each calendar month, confirming that the information contained therein is readable and contains the information necessary Lender to permit the subservicer to prepare all monthly noteholder statements required to be delivered in accordance with the Servicing Agreement;
(C) completing trial conversions to transfer the data contained in the computer file described above to the subservicer’s servicing system; and
(D) recalculating all monthly noteholder statements that Servicer is required to deliver pursuant to the Servicing Agreementsuch Lender.
(c) IfIf on or before March 31, a Default Trigger Event occurs and has not been cured after seven Business Days 2002 (or two Business Days with respect to Servicer’s failure to make any paymentthe "SECOND TRIGGER EVENT DATE"), transfer or deposit when required) after the date written notice thereof Borrowers shall have been received failed to generate or receive an additional $50,000,000 in cash from either (1) Net Asset Sale Proceeds or (2) a contribution by Servicer, Servicer Performance Guarantor may require Servicer the Company to take the following actions:
(i) permit Servicer Performance Guarantor to conduct not one or more than two Borrowers of cash proceeds consisting of additional inspections and/or audits per calendar year and to reimburse Servicer Performance Guarantor for any invoiced reasonably out of pocket costs and expenses in connection therewith; and
(ii) at Servicer’s expense, enter into a subservicing agreement reasonably satisfactory to Servicer Performance Guarantor with a subservicer pursuant to which the subservicer shall agree to perform the Guaranteed Servicer Obligations (equity or cash from Data Holdco or its Subsidiaries or any subset thereof requested by other source, in the Servicer Performance Guarantorcase of clauses (c)(1) pursuant to the Servicing Agreement. The subservicer appointed above shall continue to perform the Guaranteed Servicer Obligations until Servicer establishes to Servicer Performance Guarantor’s reasonable satisfaction that Servicer is capable of providing the Guaranteed Servicer Obligations and can resume providing the Guaranteed Servicer Obligations.
(d) Servicer shall promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that Servicer Performance Guarantor may request to enable Servicer Performance Guarantor to enforce its rights under this Section 3.10. Servicer shall reimburse Servicer Performance Guarantor for any invoiced reasonable out of pocket expenses in connection with exercising its rights as described in this Section 3.10.
(e) Servicer shall promptly, and in any event within 2 Business Days, notify Servicer Performance Guarantor of the occurrence of a Default Trigger Event.c)
Appears in 1 contract