Triggering Events. Notwithstanding anything to the contrary contained in this Agreement, if at any time a Triggering Event occurs or shall have occurred, then until such time as 100% of the Capital Contributions contemplated by Section 3.3 have been made to the Company, the Capital Members shall have the following respective rights and obligations: (a) ADA-ES Triggering Events. Upon any ADA-ES Triggering Event, the ECP Members shall have the collective right, but not the obligation, to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary thereof, to: (i) purchase or cause one or more Designees to purchase all, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoing, the ECP Members shall not have the option to exercise the ECP Call Right pursuant to this clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions set forth in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery of the ECP Election Notice; (ii) dissolve the Company; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall immediately be dissolved in the manner set forth in Article XIII; and (iii) cause the Company to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall be immediately (or as promptly as practicable thereafter) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses (i) or (ii) of this Section 3.6(a). Following the occurrence of an ADA-ES Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions as and when required in the manner set forth in this Article III. From and after the date of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Members.
Appears in 1 contract
Triggering Events. Notwithstanding anything to the contrary contained in this Agreement, if at any time a (1) A Triggering Event occurs shall occur when the Lessee shall fail to make payment as provided for in two or more of the categories listed below. Furthermore, such Triggering Event shall not have occurred unless the Port Authority shall have occurred, then until notified the Lessee that such time as 100% Triggering Event shall be effective on a date thirty (30) days following the date of such notice unless all payments due from the Capital Contributions contemplated by Section 3.3 Lessee pursuant to such categories listed below and specified in such notice have been received by the Port Authority:
(i) Payment of monthly installments of rental shall be made to the CompanyPort Authority on the first day of each calendar month;
(ii) Payment of all sums, including, without limitation, flight fees and fuel gallonage fees under the Lessee's General Airport Agreement or under the Lessee's JFK Flight Fees Agreement (with respect to flight fees), or otherwise, shall be made to the Port Authority on or before the date required for payment in such agreements;
(iii) Payment of all sums due to the Port Authority under this Agreement or otherwise, and outstanding for more than thirty (30) days, appearing on a Statement of Account rendered by the Port Authority to the Lessee. No provision of this paragraph (1) shall be deemed to affect or limit the right of the Port Authority to terminate the Lease pursuant to Section 20 (a) (9) thereof for failure to make such payments when due under the Lease.
(2) The Lessee expressly represents and warrants to the Port Authority that, as of the "Lease Commencement Date" as defined in the Lease, the Capital Members Lessee has multiple publicly or non-publicly held Debt Financings each in excess of Thirty-two Million Dollars and No Cents ($32,000,000.00) which include events of default which could lead to acceleration thereof.
(3) A Triggering Event shall occur if any of the following shall occur and the Port Authority shall have previously given or shall thereafter during the following respective rights and obligationspendency thereof give the Lessee notice of the election of the Port Authority to activate such Triggering Event:
(a) ADA-ES Triggering Events. Upon as a result of a default by the Lessee, other than a default arising due to compliance by the Lessee with any ADA-ES Triggering Eventapplicable law or directive or (provided that the Lessee has satisfied the Port Authority that it is reasonable to comply therewith) with any requirement, whether having the ECP Members shall have force of law or not, of any government or regulatory authority to which the collective rightLessee is subject, but unless such default results in the Lessee becoming bound to repay Final November 22, 2005 prematurely any of its Indebtedness for borrowed moneys as described in (i) below (not being that in respect of which the obligation, default has occurred) and steps are taken to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary obtain repayment thereof, to:
(i) purchase or cause one or more Designees the Lessee becomes bound to purchase all, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoing, the ECP Members shall not have the option to exercise the ECP Call Right pursuant to this clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that repay prematurely any of its Indebtedness for borrowed moneys having an outstanding aggregate principal amount of at least the conditions set forth Specified Amount or its equivalent in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests any other currency or currencies and a single closing date for such purchase, which shall be on or prior steps are taken to the 45th day following delivery of the ECP Election Notice;obtain repayment thereof; or
(ii) dissolve any such Indebtedness having an outstanding aggregate principal amount of at least the Company; Specified Amount or any guarantee or indemnity of the Lessee of any Indebtedness of any Person for borrowed moneys having an outstanding aggregate principal amount of at least the Specified Amount is not, when due, paid by the latest of its due date, the expiry of any applicable grace period and (if payment is prevented by any applicable law) fifteen (15) days after the first date on which payment is permitted, provided that for any such acceleration of maturity, default or failure to pay in subdivision II (3)(a)(i) and/or II (3)(a)(ii) above, as the 30 days immediately following case may be, shall not constitute a Triggering Event so long as the date Lessee satisfies the Port Authority that it is being contested in good faith by the Lessee or as long as the Lessee demonstrates to the Port Authority that such event of delivery default and acceleration of Debt has arisen from events other than those which would signify a deterioration in the Lessee's financial position or an inability to meet its financial obligations under such Debt; or
(b) a creditor takes possession or an administrative or other receiver is appointed of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery whole or a substantial part of the ECP Election Notice, to purchase all, but not less than all, assets of the Membership Interests Lessee and such taking of possession or appointment is not released, discharged or canceled within 60 days; or
(c) a distress, execution or seizure before judgment is levied or enforced upon or sued out against a substantial part of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests assets of the ECP Members shall specify the Call Purchase Price for such Membership Interests Lessee and a single closing date for such purchaseis not discharged, which shall be on dismissed or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall immediately be dissolved in the manner set forth in Article XIIIstayed within 60 days thereof; andor
(iiid) cause the Company Lessee stops payment generally or is unable to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall be immediately (or as promptly as practicable thereafter) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses (i) or (ii) of this Section 3.6(a). Following the occurrence of an ADA-ES Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions pay its Debts generally as and when required they fall due or (otherwise than for the purposes of a solvent reconstruction, amalgamation or merger the terms of which have previously been approved in writing by the manner set forth Port Authority) or ceases or threatens to cease to carry on all or substantially all of its business; or
(e) the Lessee makes an assignment for the benefit or creditors generally or admits in this Article III. From and after the date writing its inability to pay its Debts generally as they become due or takes corporate action in furtherance of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Membersaction.
Appears in 1 contract
Triggering Events. Notwithstanding anything to Any of the contrary contained in this Agreement, if at any time following events shall constitute a Triggering Event occurs of Default ("Triggering Event"):
1. Lessee shall voluntarily abandon, desert, or shall have occurredvacate the Premises or cease to operate and manage the Premises as provided herein for a period of thirty (30) consecutive calendar days; or
2. Any lien, then until such time claim, or other encumbrance, which is filed against the Premises that is not permitted by this Lease, is not removed or bonded as 100% of the Capital Contributions contemplated required by Section 3.3 have been 11.C. of this Lease within thirty (30) calendar days following the date written notice is given Lessee; or
3. Lessee shall fail to pay rent when due to Lessor and shall continue in its failure to pay rent for a period of fifteen (15) calendar days following the date written notice to cure nonpayment is given Lessee; or
4. Lessee shall fail to make any other payment required hereunder when due to Lessor and shall continue in its failure to make any such other payment required hereunder, for a period of fifteen (15) calendar days following the date written notice to cure nonpayment is given Lessee; or
5. Lessee shall take any action described in Article 10 of this Lease without the prior written consent of Lessor; and Lessee does not institute appropriate action to rescind such action or to obtain the required consent within ten (10) calendar days following the date written notice is given Lessee; or
6. The discovery of any material misrepresentation of fact or fraudulent statement made by Lessee in connection with any lease application or forms, submitted to and relied upon by Lessor in connection with this Lease that is not waived by Lessor. Lessee shall be allowed fifteen (15) calendar days following the Company, the Capital Members shall have the following respective rights and obligations:
(a) ADA-ES Triggering Events. Upon any ADA-ES Triggering Event, the ECP Members shall have the collective right, but not the obligationdate written notice is given Lessee, to elect from time explain the matter and provide Lessor with the information needed to time by written notice (the “ECP Election Notice”) make a waiver determination, which determination shall be, in Lessor's sole discretion; or
7. Lessee fails to the Company keep, perform, and to each other Member during the period commencing on the date of such ADA-ES Triggering Event observe any promise, covenant, and ending on the three month anniversary thereof, to:
(i) purchase or cause one or more Designees to purchase all, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoing, the ECP Members shall not have the option to exercise the ECP Call Right pursuant to this clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions term set forth in section 6.01 this Lease and such failure continues for a period of fifteen (15) calendar days after written notice of default is given by Lessor or, in the case of any obligation which cannot be cured with due diligence and good faith within fifteen (15) calendar days, if Lessee fails to proceed promptly and with due diligence and good faith to begin to cure the default within fifteen (15) calendar days after the giving of notice by Lessor, or having begun to cure the default in a timely manner, Lessee thereafter fails to diligently prosecute the cure to completion; or
8. By or pursuant to, or under authority of any legislative act, resolution, or rule or any order or decree of any court or governmental board, agency, or officer having jurisdiction, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the Securities Purchase Agreement have become incapable property of fulfillment. Any ECP Election Notice electing the ECP Call Right Lessee, and such possession or control shall specify the Call Purchase Price continue in effect for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery period of the ECP Election Notice;ninety (90) calendar days; or
(ii) dissolve the Company; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase9. If such closing Lessee or an officer, director, executive, partner, member, shareholder, employee, or agent who is active in the management of the purchase Lessee, is found guilty or convicted of the ECP Members’ Membership Interests occurs prior to the expiration illegal conduct or activity (with or without an adjudication of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than guilt) as a result of a material breach or refusal to close by the ECP Members)jury verdict, then the Company shall immediately be dissolved in the manner set forth in Article XIII; and
(iii) cause the Company to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Noticenonjury trial, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result entry of a material breach plea of guilty or refusal to close by nolo contendere where the ECP Members), then the Company shall be immediately (illegal conduct or as promptly as practicable thereafter) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses activity (i) is considered to be a Public Entity Crime as defined by Chapter 287, Florida Statutes, as amended; or (ii) is customarily considered to be a "white collar crime" or theft-related crime such as fraud, smuggling, bribery, embezzlement, or misappropriation of this Section 3.6(a). Following funds; or (iii) involves an act of moral turpitude meaning conduct or acts that tend to degrade the occurrence principals or owners in society or bring them into public hatred, contempt, scorn, or ridicule, or that tends to shock, insult, or offend the community, or ridicule public morals, or decency or harm the image of an ADA-ES Triggering Event, but prior to the date Lessor by virtue of any ECP Election Notice, Members shall continue to fund Capital Contributions as and when required in the manner set forth in this Article III. From and after the date of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreementits association with Lessee; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Members.or
Appears in 1 contract
Sources: Lease Agreement
Triggering Events. Notwithstanding anything to Any of the contrary contained in following events shall constitute a "Triggering Event" for purposes of this Agreement, if at any time a Triggering Event occurs or shall have occurred, then until such time as 100% of the Capital Contributions contemplated by Section 3.3 have been made to the Company, the Capital Members shall have the following respective rights and obligations:
(a) ADA-ES Triggering Events. Upon any ADA-ES Triggering Event, the ECP Members shall have the collective right, but not the obligation, to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary thereof, to:
(i) purchase or cause one or more Designees to purchase allIf, but not less than all, of ADA-ES’s Membership Interests for by the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoingRequired Filing Date, the ECP Members shall not Exchange Offer Registration Statement is required to have the option to exercise the ECP Call Right been filed pursuant to this clause (iSection 2(a) if but has not been filed with the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions set forth in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery of the ECP Election NoticeCommission;
(ii) dissolve If the Company; provided that for Exchange Offer Registration Statement is not required to be filed pursuant to Section 2(a) and the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice Shelf Registration Statement is required to the ECP Members no later than 14 days following delivery of the ECP Election Notice, be filed pursuant to purchase all, Section 3 but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to have been filed with the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close Commission by the ECP Members), then the Company shall immediately be dissolved in the manner set forth in Article XIII; andRequired Filing Date;
(iii) cause If, by forty-five (45) days after the Company Required Filing Date, the Exchange Offer Registration Statement is required to enter into a Company Sale Transaction; provided that for have been filed pursuant to Section 2(a) but has not been declared effective by the 30 days immediately following Commission;
(iv) If the Exchange Offer Registration Statement is not required to be filed pursuant to Section 2(a) and the Shelf Registration Statement is required to be and has been filed pursuant to Section 3 but shall not have been declared effective by the Commission by the date that is forty-five (45) days after the Required Filing Date;
(v) If, by seventy-five (75) days after the Required Filing Date, the Exchange Offer Registration Statement is required to have been filed pursuant to Section 2(a) but the Registered Exchange Offer relating to the Securities has not been commenced or, if commenced, all Initial Securities validly tendered pursuant thereto have not been accepted for exchange; or
(vi) If the Exchange Offer Registration Statement is not required to be filed pursuant to Section 2(a) and the Shelf Registration Statement is required to be and has been filed pursuant to Section 3 but shall fail, whether or not due to the exercise of delivery a Shelf Blackout Right, to be continuously effective and complete (except for one period not to exceed thirty (30) consecutive days in any twelve month period) in order to permit the prospectus included therein to be lawfully delivered by the Holders of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period Securities registered thereunder (for any reason other than as a result of a material breach or refusal to close by the ECP MembersInitial Purchaser and its Affiliates), then until the Company shall be immediately (or as promptly as practicable thereafter) sold pursuant later to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days occur of the date of upon which all the ECP Election Notice, Securities registered under the ECP Members shall Shelf Registration Statement held by persons other than the Initial Purchaser (A) have the option to pursue either of the alternate remedies set forth in clauses (i) been sold pursuant thereto or (ii) of this Section 3.6(a). Following the occurrence of an ADA-ES Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions as and when required in the manner set forth in this Article III. From and after the date of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(aB) are no longer available to eligible for sale under Rule 144(k) under the ECP MembersSecurities Act.
Appears in 1 contract
Sources: Debenture Exchange and Registration Rights Agreement (Voicestream Wireless Corp)
Triggering Events. Notwithstanding anything (a) Without limitation to any other right or remedy of the contrary contained in Ceding Company under this Agreement, if any event or occurrence described in Section 11.02(c) shall constitute a “Triggering Event” for purposes of the Trust Account.
(b) Upon the occurrence of a Triggering Event, the Ceding Company may, in lieu of recapturing the Reinsured Policies pursuant to Section 11.02, direct the Reinsurer in writing that the Over-Collateralization Amount shall increase from [*] percent ([*]%) to [*] percent ([*]%) of Funds Withheld Reserves (but calculated excluding Post-Effective Time IMR) and thereafter shall be maintained at that level except as otherwise set forth in this Section 9.04(b). In the event the Ceding Company elects to require the Reinsurer to increase the Over-Collateralization Amount in accordance with this Section 9.04(b), (i) such election shall be deemed a waiver of the Ceding Company’s right to recapture the Reinsured Liabilities under Section 11.02 solely with respect to such Triggering Event, and (ii) upon provision by the Reinsurer of evidence reasonably satisfactory to the Ceding Company that the Triggering Event giving rise to the Ceding Company’s election to require the Reinsurer to increase the Over-Collateralization Amount has been cured, the Over-Collateralization Amount shall decrease from [*] percent ([*]%) to [*] percent ([*]%) of Funds Withheld Reserves (but calculated excluding Post-Effective Time IMR) effective for purposes of the first Monthly Accounting Period following the Monthly Accounting Period during which such Triggering Event was cured. For the avoidance of doubt, (x) the Ceding Company’s election to increase the Over-Collateralization Amount in accordance with this Section 9.04(b) is not intended, and shall not be construed, to in any time way restrict, supersede or result in a waiver of the Ceding Company’s right to take any action or pursue any remedy to the extent permitted under this Agreement (including Section 11.02) with respect to future Triggering Events resulting from events or occurrences after the date on which such increase is effected, and (y) in the event a Triggering Event occurs or shall have occurred, then until such time as 100% of during any period where the Capital Contributions contemplated by Section 3.3 have Over-Collateralization Amount has been made increased to the Company, the Capital Members shall have the following respective rights and obligations:
[*] percent (a[*]%) ADA-ES Triggering Events. Upon any ADA-ES Triggering Event, the ECP Members shall have the collective right, but not the obligation, to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary thereof, to:
(i) purchase or cause one or more Designees to purchase all, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoing, the ECP Members shall not have the option to exercise the ECP Call Right pursuant to this Section 9.04(b) or clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions set forth in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery of the ECP Election Notice;
(ii) dissolve the Company; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall immediately be dissolved in the manner set forth in Article XIII; and
(iii) cause the Company to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall be immediately (or as promptly as practicable thereafter) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses (i) or (ii) of the definition of Over-Collateralization Amount, the Over-Collateralization Amount shall not be increased any further, but the Ceding Company shall retain all rights to take any other actions or pursue any other remedies to the extent permitted under this Agreement (including Section 3.6(a). Following the occurrence of an ADA-ES 11.02) with respect to such Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions as and when required in the manner set forth in this Article III. From and after the date of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Members.
Appears in 1 contract
Sources: Funds Withheld Coinsurance Agreement (National Western Life Group, Inc.)
Triggering Events. Each of the following events shall constitute a “Triggering Event”:
(a) the Corporation does not meet the current public information requirements under Rule 144 of the Securities Act of 1933 in respect of the shares of Common Stock issuable upon conversion of the Series E;
(b) the Corporation ceases to be subject to the periodic reporting provisions of the Securities Exchange Act of 1934.
(c) the suspension from trading or failure of the Common Stock to be trading or listed (as applicable) on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the NYSE American, the OTCQB, the OTCQX, or the Pink Open Market (f/k/a OTC Pink) (or any successors to any of the foregoing) for a period of 10 consecutive Trading Days;
(d) the Corporation’s written notice to any holder of Series E, including, without limitation, by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for conversion of any Series E into shares of Common Stock that is requested in accordance with the provisions of this A&R Certificate of Designation, other than pursuant to the Beneficial Ownership Limitation;
(e) the Company fails to meet its share reservation obligations under that certain Securities Purchase Agreement between the Company and each Holder for which the Series E was issued;
(f) if, at any time, the Corporation fails to reserve and keep available for each Holder 300% of the number of shares of Common Stock issuable to each Holder upon conversion, in full, of all of the Series E then held by such Holder (without regard to any limitation on conversion set forth in this A&R Certificate of Designation), provided that, if such reservations (A) are additional reservations required as a result of a conversion price adjustment pursuant to Sections 6(b), 9 or 10 or the effect of the Triggering Event Conversion Amount and (B) such additional reservations, when aggregated with all other required reservations of Common Stock that are unmet at such time, would exceed the Corporation’s then-authorized Common Stock available for reservation, then such failure shall be a Triggering Event only if (i) the Corporation has not filed a preliminary information statement with the United States Securities and Exchange Commission (the “SEC”) to effect an increase in the Corporation’s authorized Common Stock within 30 days after written notice from such Holder, (ii) the Corporation does not file with the SEC and mail to its stockholders a definitive information statement promptly (taking into account all SEC comments, comment periods, broker search requirements, record date requirements and transfer agent logistics), or (iii) cause the Corporation’s authorized Common Stock to be increased within 25 days (subject to adjustment in the event of a change in the waiting period requirements imposed by applicable law) after the definitive information statement is first mailed to stockholders;
(g) the Corporation’s failure to declare or to pay to any Holder any dividend on any Dividend Payment Date (as defined in Section 17) whether or not such dividend is declared by the Board of Directors or any other amount when and as due under this A&R Certificate of Designation, or any other Transaction Document, except, in the case of a failure to pay dividends when and as due, in each such case only if such failure remains uncured for a period of at least 10 consecutive Trading Days;
(h) the Corporation either (A) fails to cure a conversion failure by delivery of the required number of shares of Common Stock within two ) Trading Days after the applicable conversion date on two or more occasions or (B) fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to such Holder upon conversion of any Series E or as and when required by this A&R Certificate of Designation unless otherwise then prohibited by applicable federal securities laws, and any such failure to remove the legend remains uncured for at least five consecutive Trading Days;
(i) bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against the Corporation or any subsidiary which shall not be dismissed within 60 days of their initiation;
(j) the commencement by the Corporation or any subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Corporation or any subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Corporation or any subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, the taking of corporate action by the Corporation or any subsidiary in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or any other similar action under federal, state or foreign law;
(k) the entry by a court of (i) a decree, order, judgment or other similar document in respect of the Corporation or any subsidiary of an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree, order, judgment or other similar document adjudging the Corporation or any subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Corporation or any subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Corporation or any subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs;
(l) a final judgment or judgments for the payment of money in excess of $50,000 are rendered against the Corporation and/or any of its subsidiaries and which judgments are not, within 10 days after the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within 30 days after the expiration of such stay;
(m) other than as specifically set forth in another clause of Section 7, the Corporation breaches any representation or warranty in any material respect (other than representations or warranties subject to material adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any Transaction Document, except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of five consecutive Trading Days;
(n) failing to comply in any material respect with the reporting requirements of the Securities Exchange Act of 1934 (including, but not limited to, becoming delinquent in its filings);
(o) providing material non-public information to a Holder of Series E without its prior written consent;
(p) failure to redeem the Series E in accordance with this A&R Certificate of Designation;
(q) any change in the Corporation’s transfer agent; or
(r) a false or inaccurate certification (including a false or inaccurate deemed certification) by the Corporation as to whether any Triggering Event has occurred. Notwithstanding anything to the contrary contained in this Agreementherein, if at any time a Triggering Event occurs or Sections 7(i), 7(j), 7(k) and 7(l) shall have occurred, then until such time as 100% of the Capital Contributions contemplated by Section 3.3 have been made not apply (A) with respect to the CompanyCorporation’s subsidiaries, or (B) the Corporation’s ownership interest in such subsidiaries, provided that, at the time of such action, event or occurrence, the Capital Members shall have the following respective rights and obligations:
(a) ADA-ES Triggering Events. Upon any ADA-ES Triggering Event, the ECP Members shall have the collective right, but not the obligation, to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary thereof, to:
(i) purchase or cause Corporation has one or more Designees to purchase allother subsidiaries with material business operations that are not then effected by an action, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests (the “ECP Call Right”). Notwithstanding the foregoing, the ECP Members shall not have the option to exercise the ECP Call Right pursuant to this clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions set forth event or occurrence described in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery of the ECP Election Notice;
(ii) dissolve the Company; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP MembersSections 7(i), then the Company shall immediately be dissolved in the manner set forth in Article XIII; and
(iii) cause the Company to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members7(j), then the Company shall be immediately (or as promptly as practicable thereafter7(k) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses (i) or (ii) of this Section 3.6(aand 7(l). Following the occurrence of an ADA-ES Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions as and when required in the manner set forth in this Article III. From and after the date of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Members.
Appears in 1 contract
Sources: Securities Purchase Agreement (Transportation & Logistics Systems, Inc.)
Triggering Events. Notwithstanding anything to the contrary contained in this Agreement, if at any time a (1) A Triggering Event occurs shall occur when the Lessee shall fail to make payment as provided for in two or more of the categories listed below. Furthermore, such Triggering Event shall not have occurred unless the Port Authority shall have occurred, then until notified the Lessee that such time as 100% Triggering Event shall be effective on a date thirty (30) days following the date of such notice unless all payments due from the Capital Contributions contemplated by Section 3.3 Lessee pursuant to such categories listed below and specified in such notice have been received by the Port Authority:
(i) Payment of monthly installments of rental shall be made to the CompanyPort Authority on the first day of each calendar month;
(ii) Payment of all sums, including, without limitation, flight fees and fuel gallonage fees under the Lessee’s General Airport Agreement, or otherwise, shall be made to the Port Authority on or before the twentieth day of the following calendar month;
(iii) Payment of all sums due to the Port Authority under this Agreement or otherwise, and outstanding for more than thirty (30) days, appearing on a Statement of Account rendered by the Port Authority to the Lessee. No provision of this paragraph (1) shall be deemed to affect or limit the right of the Port Authority to terminate the Lease pursuant to Section 20 (a) (9) thereof for failure to make such payments when due under the Lease.
(2) The Lessee expressly represents and warrants to the Port Authority that, as of the “Effective Date” as defined in the Lease, the Capital Members Lessee has multiple publicly or non-publicly held Debt Financings each in excess of Five Million Dollars and No Cents ($5,000,000.00) which include events of default which could lead to acceleration thereof.
(3) A Triggering Event shall occur if any of the following shall occur and the Port Authority shall have previously given or shall thereafter during the following respective rights and obligationspendency thereof give the Lessee notice of the election of the Port Authority to activate such Triggering Event:
(a) ADA-ES Triggering Events. Upon as a result of a default by the Lessee, other than a default arising due to compliance by the Lessee with any ADA-ES Triggering Eventapplicable law or directive or (provided that the Lessee has satisfied the Port Authority that it is reasonable to comply therewith) with any requirement, whether having the ECP Members shall have force of law or not, of any government or regulatory authority to which the collective rightLessee is subject, but unless such default results in the Lessee becoming bound to repay prematurely any of its Indebtedness for borrowed moneys as described in (i) below (not being that in respect of which the obligation, default has occurred) and steps are taken to elect from time to time by written notice (the “ECP Election Notice”) to the Company and to each other Member during the period commencing on the date of such ADA-ES Triggering Event and ending on the three month anniversary obtain repayment thereof, to:
(i) purchase the Lessee becomes bound to repay prematurely any of its Indebtedness for borrowed moneys having an outstanding aggregate principal amount of at least Five Million Dollars and No Cents ($5,000,000.00) or cause one its equivalent in any other currency or more Designees to purchase all, but not less than all, of ADA-ES’s Membership Interests for the Call Purchase Price for such Membership Interests currencies (hereinafter in this paragraph (a)(i) called the “ECP Call RightSpecified Amount”). Notwithstanding the foregoing, the ECP Members shall not have the option ) and steps are taken to exercise the ECP Call Right pursuant to this clause (i) if the ADA-ES Triggering Event that has occurred is attributable solely to a termination of the Securities Purchase Agreement by the Purchasers (as defined therein) pursuant to section 6.03(f) thereof on the basis that any of the conditions set forth in section 6.01 of the Securities Purchase Agreement have become incapable of fulfillment. Any ECP Election Notice electing the ECP Call Right shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 45th day following delivery of the ECP Election Notice;obtain repayment thereof; or
(ii) dissolve any such Indebtedness having an outstanding aggregate principal amount of at least the Company; Specified Amount or any guarantee or indemnity of the Lessee of any Indebtedness of any Person for borrowed moneys having an outstanding aggregate principal amount of at least the Specified Amount is not, when due, paid by the latest of its due date, the expiry of any applicable grace period and (if payment is prevented by any applicable law) fifteen (15) days after the first date on which payment is permitted, provided that for any such acceleration of maturity, default or failure to pay in subdivision II (3)(a)(i) and/or II (3)(a)(ii) above, as the 30 days immediately following case may be, shall not constitute a Triggering Event so long as the date Lessee satisfies the Port Authority that it is being contested in good faith by the Lessee or as long as the Lessee demonstrates to the Port Authority that such event of delivery default and acceleration of Debt has arisen from events other than those which would signify a deterioration in the Lessee’s financial position or an inability to meet its financial obligations under such Debt; or
(b) a creditor takes possession or an administrative or other receiver is appointed of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery whole or a substantial part of the ECP Election Notice, to purchase all, but not less than all, assets of the Membership Interests Lessee and such taking of possession or appointment is not released, discharged or canceled within 60 days; or
(c) a distress, execution or seizure before judgment is levied or enforced upon or sued out against a substantial part of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests assets of the ECP Members shall specify the Call Purchase Price for such Membership Interests Lessee and a single closing date for such purchaseis not discharged, which shall be on dismissed or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any such election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated dissolution of the Company during the pendancy of such proposed purchase. If such closing of the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not be dissolved. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall immediately be dissolved in the manner set forth in Article XIIIstayed within 60 days thereof; andor
(iiid) cause the Company Lessee stops payment generally or is unable to enter into a Company Sale Transaction; provided that for the 30 days immediately following the date of delivery of the ECP Election Notice, ADA-ES shall have the option, upon written notice to the ECP Members no later than 14 days following delivery of the ECP Election Notice, to purchase all, but not less than all, of the Membership Interests of the ECP Members at the Call Purchase Price for such Membership Interests. Any such written notice by ADA-ES electing to purchase the Membership Interests of the ECP Members shall specify the Call Purchase Price for such Membership Interests and a single closing date for such purchase, which shall be on or prior to the 30th day following delivery of the ECP Election Notice. Notwithstanding any election by ADA-ES to purchase the Membership Interests of the ECP Members, the Members shall use all reasonable efforts to prepare for and facilitate the anticipated Company Sale Transaction. If such closing or the purchase of the ECP Members’ Membership Interests occurs prior to the expiration of such 30-day period, the Company shall not consummate a Company Sale Transaction. If such closing does not occur on or prior to the expiration of such 30-day period (for any reason other than as a result of a material breach or refusal to close by the ECP Members), then the Company shall be immediately (or as promptly as practicable thereafter) sold pursuant to the proposed Company Sale Transaction. Such Company Sale Transaction shall be consummated on the terms set forth in Article XIV hereof. If such Company Sale Transaction cannot be consummated within 150 days of the date of the ECP Election Notice, the ECP Members shall have the option to pursue either of the alternate remedies set forth in clauses (i) or (ii) of this Section 3.6(a). Following the occurrence of an ADA-ES Triggering Event, but prior to the date of any ECP Election Notice, Members shall continue to fund Capital Contributions pay its Debts generally as and when required they fall due or (otherwise than for the purposes of a solvent reconstruction, amalgamation or merger the terms of which have previously been approved in writing by the manner set forth Port Authority) or ceases or threatens to cease to carry on all or substantially all of its business; or
(e) the Lessee makes an assignment for the benefit or creditors generally or admits in this Article III. From and after the date writing its inability to pay its Debts generally as they become due or takes corporate action in furtherance of any ECP Election Notice until the consummation of the transactions contemplated thereby, each ECP Member also shall have the option, but not the obligation, to fund all or any portion of (i) the Capital Contributions that such ECP Member otherwise would be obligated to make pursuant to this Agreement, and (ii) such ECP Member’s pro rata share of the Capital Contributions that ADA-ES otherwise would be obligated to make pursuant to this Agreement; provided that in the event the ECP Members fail or determine not to fund such ADA-ES Capital Contributions, ADA-ES shall have the option to make such Capital Contributions. On and after the Effective Date, the remedies described in this Section 3.6(a) are no longer available to the ECP Membersaction.
Appears in 1 contract