Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event: (a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach. (b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect. (c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof. (d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors. (e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries. (f) A Change of Control shall occur. (g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution. (h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security. (i) Any Plan of any Originator or any of its respective ERISA Affiliates: (i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or (ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or (iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or (iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect. (j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 2 contracts
Sources: Receivables Sale Agreement (Allied Waste Industries Inc), Receivables Sale Agreement (Allied Waste Industries Inc)
Termination Events. The occurrence of If any one or more of the following termination events (“Termination Events”) shall constitute a Termination Eventoccur and be Continuing:
(a) Any Originator shall fail (i) failure on the part of the Borrower, the Servicer or any Guarantor to make any payment or deposit (including, without limitation, the payment in full of all Advances and other Obligations on the Termination Date and any failure to remit Collections or make any other payment or deposit required hereunder when due and, for to be made by it pursuant to the terms of the Transaction Documents) required by the terms of any Transaction Document on the day such payment or deposit which is not in respect of principal, such failure required to be made and the same continues unremedied for three two Business Days (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) the case of this paragraph (aa payment due under Section 2.6(b)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.; or
(b) Any the failure of the Borrower, the Originator, any Guarantor, the Servicer (for purposes of this Section 10.1, references to the “Servicer” shall only apply while NewStar Business Credit, LLC or its Affiliate is the Servicer) to make any payment when due with respect to any of its debt or other obligations in excess of $250,000 in the aggregate (or $5,000,000 in the aggregate with respect to NewStar Financial, Inc.) or the occurrence of any event or condition such that the holder of such debt or other obligations in excess of $250,000 in the aggregate (or $5,000,000 in the aggregate with respect to NewStar Financial, Inc.), has declared should be accelerated; or
(c) any representation, warranty, warranty or certification or statement made by the Borrower, the Servicer, the Originator or any Originator Guarantor in this Agreement, any other Transaction Document to which it is a party or in any other document certificate delivered pursuant thereto to any Transaction Document shall prove to have been materially incorrect when made, and which continues to be unremedied for a period of 15 days (or 30 days with respect to NewStar Financial, Inc.) after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Borrower, the Servicer, the Originator or such Guarantor, as applicable, by the Administrative Agent or (ii) the date on which a Responsible Officer of the Borrower, the Servicer, the Originator or such Guarantor, as applicable, acquires knowledge thereof; or
(d) any failure on the part of the Borrower, the Originator, the Servicer or any Guarantor duly to observe or perform in any material respect when made any of its respective covenants or deemed made andagreements set forth in this Agreement or the other Transaction Documents, with respect including without limitation making a material change to any the Credit and Collection Policy or other underwriting guidelines (subject to Section 5.4(f)), and the same continues unremedied for a period of fifteen (15) Business Days (if such representation, warranty, certification or statement that was so incorrect and which can be cured, failure in the reasonable determination of the Administrative Agent is not cured within ten (10susceptible to cure) days after the earlier to occur of (Ii) the date such Originator receives on which written notice of such breach from Buyerfailure requiring the same to be remedied shall have been given to the Borrower, the Originator, the Servicer or such Guarantor, as applicable, by the Administrative Agent or any Lender Group Agent and (IIii) the date an Authorized on which a Responsible Officer of the Borrower, the Originator, the Servicer or such Originator knows or should have known of such breachGuarantor, as applicable, acquires knowledge thereof; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.or
(e) An the occurrence of an Insolvency Event of Bankruptcy shall occur with respect relating to any Originator NewStar Financial, Inc., the Borrower, the Originator, the Servicer or any of its Subsidiaries.Guarantor; or
(f) A Change the occurrence of Control shall occur.a Servicer Default; or
(g) One the rendering of one or more final judgments judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in an amount in excess of $50,000,000, individually or in the aggregateaggregate of $1,000,000 (or in the aggregate of $7,500,000 with respect to NewStar Financial, Inc.), against the Borrower, the Originator, the Servicer or any Guarantor, and the Borrower, the Originator, the Servicer or such Guarantor, as applicable, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of have either (i) seven (7) days after inception and discharged, paid or provided for the discharge of any such judgment, decree or order in accordance with its terms by the time required in such judgment, decree or order, or (ii) knowledge by any Secured Party perfected a timely appeal of such lienjudgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal; or
(1) any Transaction Document, or any Lien granted thereunder, shall, in whole or in material part, terminate, cease to be effective or cease to be the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any legally valid, binding and enforceable obligation of the ReceivablesBorrower, Collections and/or Related Security.the Originator, the Servicer or any Guarantor,
(2) the Borrower, the Originator, the Servicer or any Guarantor shall, directly or indirectly, contest in writing in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any lien or security interest thereunder, or
(3) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease, after a cure period of three Business Days has elapsed, to be a first priority perfected security interest (subject to Permitted Liens) except as otherwise expressly permitted to be released in accordance with the applicable Transaction Document; or
(i) Any Plan of the aggregate Advances Outstanding on any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with day exceeds the minimum funding standard required by Section 412 Maximum Availability on such day and the same continues unremedied for two Business Days of the Tax Code Borrower’s or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAServicer’s actual knowledge thereof; or
(iij) is being, the occurrence of any event which causes or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAwill cause a Material Adverse Effect; or
(iiik) shall require such Originator or any the occurrence of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 a Change of the Tax Code or Section 306 or 307 of ERISAControl; or
(ivl) results the annual audited financial statements of NewStar Financial, Inc. or the annual audited consolidating financial statements of the Borrower and the Originator are qualified in a liability any manner; or
(m) as of any date of determination on or after the last day of the Collection Period in which the initial three (3) Loans financed by the Lenders have become part of the Collateral, the Excess Spread is less than the Minimum Excess Spread Requirement; provided that as long as the Originator has agreed to repurchase Eligible Loans (and does in fact repurchase such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any Eligible Loans) such failure, waiver, termination or other event a liability that the effect would increase the Excess Spread to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Minimum Excess Spread Requirement by the date on which the Excess Spread is next determined, no Termination Event shall have occurred thator be Continuing;
(n) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act; or
(o) the Borrower, the Originator or the Servicer, without the prior written consent of the Administrative Agent, shall instruct or change any existing instructions with any Lockbox Account Bank such that the amounts on deposit in the opinion of applicable Lockbox Account shall not, or shall cease to, be swept daily to the Required LendersCollection Account; provided that this clause (o) shall not apply to the extent that such Lockbox Account contains only, when taken together with all other ERISA Events that have occurred for all periods and are then outstandingwill continue to contain only, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Excluded Amounts.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NewStar Financial, Inc.), Revolving Credit Agreement (NewStar Financial, Inc.)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each a “Termination Event”) shall occur:
(ai) Any Originator the Borrower, any Originator, the Performance Guarantor, or the Servicer shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant contained in Section 4.2 or agreement under this Agreement or any other Transaction Document to be performed or observed by the Borrower, such Originator, the Performance Guarantor or the Servicer, as applicable (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in such failure which would constitute a Termination Event under clause (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall continue for thirty (30) days, (ii) the Borrower, any Originator, the Performance Guarantor or the Servicer shall fail to make when due any payment of principal, interest or any other amount or deposit to be made by it under this Agreement or any other Transaction Document to which it is a party and such failure shall continue unremedied for fifteen five (155) consecutive days Business Days or (other than Section 4.2(c)iii) Rackspace US shall resign as Servicer, which and no successor Servicer reasonably satisfactory to the Administrative Agent shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.been appointed;
(b) Any representation, warranty, certification the Borrower shall fail to repay in full the outstanding Capital of each Lender on the Maturity Date;
(c) any representation or statement warranty made or deemed made by the Borrower, any Originator Originator, the Performance Guarantor or the Servicer (or any of their respective officers) under or in connection with this Agreement, Agreement or any other Transaction Document or any information or report delivered by the Borrower, any Originator, the Performance Guarantor or the Servicer pursuant to which it is a party this Agreement or in any other document delivered pursuant thereto Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made and, with respect to any or delivered and such representation, warranty, certification incorrect or statement that was so incorrect and which can be cured, is not cured within ten untrue representation or warranty (10if curable) shall remain false or misleading for a period of 30 days after notice thereof from the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Administrative Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.Borrower;
(d) Any Originator the Borrower or the Servicer shall fail to deliver an Information Package when required and such failure shall remain unremedied for two (2) Business Days;
(e) this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason (other than through an action of the Administrative Agent) cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Collateral, free and clear of any Adverse Claim other than any Permitted Adverse Claim;
(f) the Borrower, any Originator, the Performance Guarantor or the Servicer shall become subject to an Insolvency Proceeding as a debtor;
(g) a Change in Control shall occur;
(h) a Borrowing Base Deficit shall occur, and shall not have been cured within three (3) Business Days after a Financial Officer of the Servicer has actual knowledge thereof;
(i) (x) any event or condition occurs that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity (other than, for the avoidance of doubt, Material Indebtedness with respect to Permitted Securitization Financings) or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or (y) the Borrower or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability fail to pay its debts generally or shall make a general assignment for the benefit principal of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more Material Indebtedness at the stated final judgments for the payment of money in an amount in excess of $50,000,000maturity thereof; provided, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of that this clause (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard not apply to any secured Indebtedness that becomes due as a result of the Receivables, Collections and/or Related Security.voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(i) Any the Borrower shall fail to have an Independent Manager who satisfies each requirement and qualification specified in Section 8.03(c) of this Agreement for Independent Managers on the Borrower’s board of managers for any reason other than the predecessor Independent Manager’s death, disability or incapacity or (ii) the Borrower shall fail to have an Independent Manager who satisfies each requirement and qualification specified in Section 8.03(c) of this Agreement for Independent Managers on the Borrower’s board of managers because of the predecessor Independent Manager’s death, disability or incapacity and such failure shall continue for more than (10) Business Days after Borrower’s knowledge thereof (or such longer period as may approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed));
(k) a Reportable Event shall have occurred, (ii) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Pension Plan of any Originator or Pension Plans, (iii) the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of its respective a Multiemployer Plan that such Multiemployer Plan is being terminated, within the meaning of Title IV of ERISA, or (iv) the Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA Affiliates:
or Section 4975 of the Code) involving any Pension Plan; and in each case in clauses (i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
through (iv) results in a liability above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.; or
(jl) An ERISA Event the Borrower shall have occurred that, in be required to register as an “investment company” within the opinion meaning of the Required LendersInvestment Company Act;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Borrower, when taken together with all other ERISA Events that have occurred for all periods and are then outstandingany Originator, could reasonably be expected to result in liability of the Performance Guarantor or the Servicer shall so state in writing; or
(n) the failure by the Borrower, any of its Subsidiaries in an aggregate amount Originator, the Performance Guarantor, the Servicer or any Material Subsidiary to pay one or more final judgments aggregating in excess of $50,000,00075,000,000 (or solely with respect to the Borrower, $15,775) (in each case, to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 45 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower, any Originator, the Performance Guarantor, the Servicer or any Material Subsidiary to enforce any such judgment; then, and in any such event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the Borrower (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred) and (y) declare the Aggregate Capital and all other Borrower Obligations to be immediately due and payable (in which case the Aggregate Capital and all other Borrower Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) of this Section 10.01 with respect to the Borrower, the Termination Date shall occur and the Aggregate Capital and all other Borrower Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Collateral shall be applied in the order of priority set forth in Section 4.01.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Rackspace Technology, Inc.), Receivables Financing Agreement (Rackspace Technology, Inc.)
Termination Events. 6.1 Originator Termination Events The occurrence of any one or more of the following events shall constitute a be construed as "Originator Termination Event:Events"
(a) Any the Originator shall fail (i) to make pay any payment or deposit required amount due hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party accordance with the provisions hereof and such failure shall continue unremedied for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after a period of five Business Days from the earlier to occur of (Ii) the date upon which a Responsible Officer of the Originator obtains actual knowledge of such Originator receives failure or (ii) the date on which written notice of such breach from Buyerfailure, requiring the Agent same to be remedied, shall have been given (A) to the Originator by the Purchaser or any Lender Group Agent the Trustee or (B) to the Purchaser, to the Trustee and (II) to the date an Authorized Officer Originator by holders of such Originator knows Investor Certificates evidencing 25% or should have known more of such breach.the Aggregate Invested Amount; or
(b) Any representationthe Originator shall fail to observe or perform any other covenant or agreement applicable to it contained herein (other than as specified in sub-clause (a) of this Clause 6.1) that has a Material Adverse Effect with respect to it and that continues unremedied until ten (10) Local Business Days after the date on which written notice of such failure, warrantyrequiring the same to be remedied shall have been given (A) to the Originator by the Purchaser or the Trustee or (B) to the Purchaser, certification to the Trustee and to the Originator by holders of Investor Certificates evidencing 25% or statement more of the Aggregate Invested Amount, provided that if such failure may be cured and the Originator is diligently pursing such cure, such event shall not constitute the Originator Termination Event for an additional thirty (30) days; or
(c) any representation or warranty made by any the Originator in this Agreement, any other Transaction Document to which it is a party Agreement or in any other document certificate delivered pursuant thereto to this Agreement shall prove to have been incorrect in any material respect when made or deemed made andmade, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within continues unremedied until ten (10) days Local Business Days after the earlier date on which written notice thereof, requiring the same to be remedied, shall have been given (A) to the Originator by the Purchaser or the Trustee or (B) to the Purchaser, to the Trustee and to the Originator by holders of Investor Certificates evidencing 25% or more of the Aggregate Invested Amount, provided that if such incorrectness may be cured and the Originator is diligently pursuing such cure, such event shall not constitute the Originator Termination Event for an additional thirty (I30) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent days and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, provided further that the materiality threshold in the preceding clause Originator Termination Event shall not be applicable with respect deemed to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
have occurred under this sub-clause (c) Failure based upon a breach of any representation or warranty set forth in Clause 3.3 if the Originator or any shall have complied with the provisions of its Affiliates to pay any Indebtedness when due Clause 2.8 in excess of $50,000,000respect thereof; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.or
(d) Any the Originator or any of its Subsidiaries shall generally not pay its debts has been terminated as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur Local Servicer with respect to any Originator or any the Receivables originated by it, and not replaced as a Local Servicer by an affiliate of its SubsidiariesHuntsman ICI, following a Master Servicer Default under the Servicing Agreement.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.6.2 Program Termination Events
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Huntsman Ici Chemicals LLC), Receivables Purchase Agreement (Huntsman Ici Holdings LLC)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Either Originator shall fail (i) to make any payment or deposit required hereunder when due anddue, for (ii) to observe or perform any such payment or deposit which is not covenant set forth in respect of principal, Section 4.2 and such failure continues shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day Days or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause clauses (i) and (ii) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen five (155) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any material representation, warranty, certification or statement made by any either Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(c) Failure of any either Originator or any of its Affiliates to pay any Indebtedness when due due, which individually or together with other such Indebtedness as to which any such failures exists has an aggregate outstanding principal amount in excess of $50,000,00010,000,000; or the default by any either Originator in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Indebtedness was created or is governed, 6.05Athe effect of which is to cause, 6.06Aor to permit the holder or holders of such Indebtedness to cause, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of an either Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Either Originator or any of its respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator ; or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, proceeding shall be entered instituted by or against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any either Originator or any of its respective ERISA Affiliates:
(i) shall fail Subsidiaries seeking to be funded in accordance with adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the minimum funding standard required by Section 412 entry of an order for relief or the Tax Code appointment of a receiver, trustee or Section 302 other similar official for it or any substantial part of ERISA for any plan year its property or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such either Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its respective Subsidiaries in an aggregate amount in excess of $50,000,000.shall
Appears in 2 contracts
Sources: Annual Report, Receivables Sale Agreement (Jabil Circuit Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Daysdue, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen three (153) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warrantywarranty or certification relating to the particular character of any one or more Receivables, certification or statement that was so incorrect and which can could reasonably be cured, is not cured within ten (10) days after expected to have a Material Adverse Effect on the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachReceivables as a whole; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Material Indebtedness of Originator when due in excess of $50,000,000due; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Material Indebtedness was created or is governed, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A the effect of the Senior Credit Agreement which is to cause such Material Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(di) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) Originator shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(gf) One or more final judgments for the payment of money in an aggregate amount in excess of $50,000,00010,000,000, individually or in the aggregate, shall be entered against Originator and/or any Originator of its Subsidiaries on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty twenty (6020) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(jg) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together occur with all other ERISA Events that have occurred for all periods and are then outstanding, respect to a Pension Plan or Multiemployer Plan which his resulted or could reasonably be expected to result in liability of Originator under Title IV of ERISA to such Pension Plan, such Multiemployer Plan or the Performance Guarantor or any of its Subsidiaries PBGC in an aggregate amount in excess of $50,000,0005,000,000; (ii) the aggregate amount of Unfunded-Pension Liability among all Pension Plans at any time exceeds $5,000,000; or (iii) Originator or any ERISA Affiliate shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $5,000,000.
Appears in 2 contracts
Sources: Receivables Sale Agreement (Adc Telecommunications Inc), Receivables Sale Agreement (Adc Telecommunications Inc)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each a "Termination Event") shall occur and be continuing:
(a) Any Originator any Transaction Party shall fail (i) to make any payment or deposit required to be made by it hereunder or under any of the Transaction Documents when due and, for any such payment hereunder or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party thereunder and such failure shall continue remain unremedied for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.one Business Day; or
(b) Any any representation, warranty, certification or statement made by any Originator Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (or, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect, such representation or warranty shall prove to have been incorrect in any respect, subject only to the materiality or Material Adverse Effect qualification set forth therein) when made or deemed made made; or
(c) any Transaction Party shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(l)(iv) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, with respect to any solely in the case of this clause (ii), such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within failure shall remain unremedied for ten (10) days after the earlier of such Transaction Party has knowledge or receives notice thereof; or
(Ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as such debts the same shall become due and payable; or (ii) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity, other than at the election of the Originator or any Subsidiary, or that, subject to any applicable grace period, enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided, however, that this clause (d)(ii) shall admit in writing its inability not apply to pay its debts generally secured Indebtedness that becomes due as a result of the voluntary sale or shall make a general assignment for transfer of the benefit of creditors.property or assets securing such Indebtedness; or
(e) An any Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.Transaction Party; or
(f) A the Buyer shall, for any reason, fail or cease to have good marketable title to the Receivables and Related Security and Collections with respect thereto, free and clear of any Adverse Claims (other than Adverse Claims created hereunder and under the Receivables Purchase Agreement); or
(g) any Change of Control shall occur.; or
(gh) One there shall have occurred since the Closing Date any event or condition which has had or could reasonably be expected to have a material adverse effect on (A) the ability of the Buyer or the Originator to perform its obligations under the Transaction Documents or (B) the collectibility of the Receivables; or
(i) any Transaction Party receives notice or becomes aware that (i) a notice of federal tax lien has been filed against any Transaction Party or (ii) a notice of lien has been filed against any Transaction Party under Section 412(n) of the IRC or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the IRC or Section 302(f) of ERISA applies; or
(j) one or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,00025,000,000 (except in each case to the extent covered by insurance or other right of reimbursement or indemnification), or which have or would reasonably be expected to have a Material Adverse Effect, shall be rendered against the Originator, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed or bonded pending appeal; then, and in any such event, the Buyer may, in its discretion, declare the Termination Date to have occurred upon notice to the Originator (in which case the Termination Date shall be deemed to have occurred); provided, however, that, automatically upon the occurrence of any Event of Bankruptcy with respect to any Transaction Party (without any requirement for the giving of notice), the Termination Date shall occur. Upon any such declaration or upon such automatic termination, the Buyer and its assigns shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 2 contracts
Sources: Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc), Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator Transferor or Smithfield Support shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for two (2) consecutive Business Days.
(b) Any Transferor or Smithfield Support shall fail to observe or perform any covenant or agreement contained in Section 4.1(b)(iv) or 4.2.
(c) Any Transferor or Smithfield Support shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in Sections 5.1(a) and (b)), and such failure shall remain unremedied for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (Ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Executive Officer of such Originator knows any of the Transferors and Smithfield Support obtaining knowledge thereof, or should (ii) written notice thereof shall have known been given to any of such breachthe Transferors and Smithfield Support by Buyer.
(bd) Any representation, warranty, certification or statement made by any Originator Transferor or Smithfield Support in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains a materiality threshold and provided, further, that any materiality threshold, including Material Adverse Effectmisrepresentation or certification for which Buyer has actually received a Purchase Price Credit shall not constitute a Termination Event hereunder.
(ce) Failure Any of any Originator the Transferors, Smithfield Support or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Non-Excluded Subsidiaries shall generally not pay its debts as such debts become due or shall unable, admit in writing its inability or fail generally to pay its debts generally or shall make a general assignment for the benefit of creditorsDebts as they become due.
(ef) An Event of Bankruptcy shall occur with respect to any Originator Smithfield, SFFC, Smithfield Support or any of its SubsidiariesOriginator.
(fg) A Change of Control shall occur.
(gi) An ERISA Event shall have occurred or (ii) such other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) and (ii) such event or condition, when taken together with all other such events or conditions, if any, that have occurred, is reasonably likely to result in a Material Adverse Effect;
(i) One or more final judgments for the payment of money in an aggregate amount in excess of $50,000,000150,000,000 (to the extent not adequately covered by insurance as to which the insurer has not denied or contested coverage) shall be rendered against ▇▇▇▇▇▇▇▇▇▇, any Subsidiary of Smithfield (other than any Excluded Subsidiary), any Originator, any Subsidiary of an Originator (other than any Excluded Subsidiary) or any combination thereof and the same shall remain unpaid or undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Smithfield, any Subsidiary of Smithfield, any Originator or any Subsidiary of any Originator (other than any Excluded Subsidiary) to enforce any such judgment, or Smithfield, any Subsidiary of Smithfield (other than any Excluded Subsidiary), any Originator or any Subsidiary of any Originator (other than any Excluded Subsidiary) shall fail within 45 days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, shall could reasonably be entered against expected to have a Material Adverse Effect, which judgments or orders, in any Originator such case, are not stayed on claims not covered appeal or otherwise being appropriately contested in good faith by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of executionproper proceedings diligently pursued.
(hj) The Internal Revenue Service A Subordinated Lender shall file notice fail to make any Subordinated Loan under the applicable subordinated loan agreement following the Buyer’s request therefor.
(k) Any Transaction Document ceases to be in full force and effect or the validity or enforceability thereof is disaffirmed by or on behalf of a lien pursuant any Transferor or any Non-Excluded Subsidiary, or at any time it is or becomes unlawful for any Transferor or any Non-Excluded Subsidiary to Section 6323 perform or comply with its obligations under any Transaction Document, or the obligations of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by Transferors or any Secured Party of such lienNon-Excluded Subsidiary under any Transaction Document are not, or the PBGC shall impose a lien pursuant cease to Section 4068 of ERISA with regard to be, legal, valid and binding on any of the Receivables, Collections and/or Related SecurityTransferors or any Non-Excluded Subsidiary.
(il) Any Plan A regulatory, tax or accounting body has ordered that the activities of any Originator or any Affiliate of such Originator contemplated hereby be terminated or, as a result of any other event or circumstance, the activities of such Originator or any Affiliate of such Originator contemplated hereby may reasonably be expected to cause such Originator or any of its respective ERISA Affiliates:Affiliates to suffer materially adverse regulatory, accounting or tax consequences.
(im) There shall fail to be funded in accordance with the minimum funding standard required by Section 412 occur any loss, termination, cancellation or other material impairment of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is beinggovernmental license, certificate, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator permit by any Transferor or any of its ERISA Affiliates Non-Excluded Subsidiary which is reasonably likely to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 2 contracts
Sources: Receivables Sale Agreement (Smithfield Foods Inc), Receivables Sale Agreement (Smithfield Foods Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator Transferor or Smithfield Support shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for two (2) consecutive Business Days.
(b) Any Transferor or Smithfield Support shall fail to observe or perform any covenant or agreement contained in Section 4.1(b)(iv) or 4.2.
(c) Any Transferor or Smithfield Support shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in Sections 5.1(a) and (b)), and such failure shall remain unremedied for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (Ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Executive Officer of such Originator knows any of the Transferors and Smithfield Support obtaining knowledge thereof, or should (ii) written notice thereof shall have known been given to any of such breachthe Transferors and Smithfield Support by Buyer.
(bd) Any representation, warranty, certification or statement made by any Originator Transferor or Smithfield Support in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains a materiality threshold and provided, further, that any materiality threshold, including Material Adverse Effectmisrepresentation or certification for which Buyer has actually received a Purchase Price Credit shall not constitute a Termination Event hereunder.
(ce) Failure Any of any Originator the Transferors, Smithfield Support or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Non-Excluded Subsidiaries shall generally not pay its debts as such debts become due or shall unable, admit in writing its inability or fail generally to pay its debts generally or shall make a general assignment for the benefit of creditorsDebts as they become due.
(ef) An Event of Bankruptcy shall occur with respect to any Originator Smithfield, SFFC, Smithfield Support or any of its SubsidiariesOriginator.
(fg) A Change of Control shall occur.
(gi) An ERISA Event shall have occurred or (ii) such other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) and (ii) such event or condition, when taken together with all other such events or conditions, if any, that have occurred, is reasonably likely to result in a Material Adverse Effect;
(i) One or more final judgments for the payment of money in an aggregate amount in excess of $50,000,000150,000,000 (to the extent not adequately covered by insurance as to which the insurer has not denied or contested coverage) shall be rendered against Smithfield, any Subsidiary of Smithfield (other than any Excluded Subsidiary), any Originator, any Subsidiary of an Originator (other than any Excluded Subsidiary) or any combination thereof and the same shall remain unpaid or undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Smithfield, any Subsidiary of Smithfield, any Originator or any Subsidiary of any Originator (other than any Excluded Subsidiary) to enforce any such judgment, or Smithfield, any Subsidiary of Smithfield (other than any Excluded Subsidiary), any Originator or any Subsidiary of any Originator (other than any Excluded Subsidiary) shall fail within 45 days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, shall could reasonably be entered against expected to have a Material Adverse Effect, which judgments or orders, in any Originator such case, are not stayed on claims not covered appeal or otherwise being appropriately contested in good faith by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of executionproper proceedings diligently pursued.
(hj) The Internal Revenue Service A Subordinated Lender shall file notice fail to make any Subordinated Loan under the applicable subordinated loan agreement following the Buyer’s request therefor.
(k) Any Transaction Document ceases to be in full force and effect or the validity or enforceability thereof is disaffirmed by or on behalf of a lien pursuant any Transferor or any Non-Excluded Subsidiary, or at any time it is or becomes unlawful for any Transferor or any Non-Excluded Subsidiary to Section 6323 perform or comply with its obligations under any Transaction Document, or the obligations of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by Transferors or any Secured Party of such lienNon-Excluded Subsidiary under any Transaction Document are not, or the PBGC shall impose a lien pursuant cease to Section 4068 of ERISA with regard to be, legal, valid and binding on any of the Receivables, Collections and/or Related SecurityTransferors or any Non-Excluded Subsidiary.
(il) Any Plan A regulatory, tax or accounting body has ordered that the activities of any Originator or any Affiliate of such Originator contemplated hereby be terminated or, as a result of any other event or circumstance, the activities of such Originator or any Affiliate of such Originator contemplated hereby may reasonably be expected to cause such Originator or any of its respective ERISA Affiliates:Affiliates to suffer materially adverse regulatory, accounting or tax consequences.
(im) There shall fail to be funded in accordance with the minimum funding standard required by Section 412 occur any loss, termination, cancellation or other material impairment of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is beinggovernmental license, certificate, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator permit by any Transferor or any of its ERISA Affiliates Non-Excluded Subsidiary which is reasonably likely to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 2 contracts
Sources: First Amendment to Fifth Amended and Restated Credit and Security Agreement (Smithfield Foods Inc), First Amendment to Fifth Amended and Restated Credit and Security Agreement (Smithfield Foods Inc)
Termination Events. The This Agreement may be terminated (prior to the expiration of its term pursuant to Section 4) at any time by one party, upon written notice to the other party, upon the occurrence of any one or more of the following events shall constitute a Termination Eventevents:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due andeither party may terminate the Agreement if Dr. Crystal dies, for any becomes disabled such payment or deposit which is that he cannot in respect of principalcontinue his employment at the Medical College, such failure continues for three (3) consecutive Business Daysterminates his employment at the Medical College, or his employment at the Medical College is otherwise terminated;
(ii) to perform or observe any covenant contained either party may terminate the Agreement if, in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to the reasonable judgment of the terminating party, termination is necessitated by reason of a change in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachLaws; provided, however, that the materiality threshold in the preceding clause Sponsor shall not use as a ground of termination such a change which could be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than cured by a regularly scheduled payment) prior to the date revision of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance Dr. Crystal's relationship with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; orSponsor;
(iii) shall require a party may terminate the Agreement if it has a reasonable basis to believe that the other party has engaged in unlawful, unethical, or seriously inappropriate conduct such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 that continued performance of the Tax Code or Section 306 or 307 Agreement would affront legitimate interests of ERISAthe terminating party; or
(iv) results a party may terminate the Agreement if the other party has committed a material breach of the terms of this Agreement or the License Agreement and has failed to remedy such breach within ten (10) days in relation to a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISApayment-related breach, and there thirty (30) days in relation to other breaches, following written notice thereof. For purposes of this Section 8, a failure by the Sponsor to make any payment required pursuant to Section 5 shall result from any such failure, waiver, termination or other event be deemed a liability to the PBGC or a Plan that would have a Material Adverse Effectmaterial breach.
(jv) An ERISA Event In the event that a party intends to terminate the Agreement under Section 8.1(ii), (iii) or (iv), the party shall have occurred thatgive written notice to that effect to the other party, in the opinion which notice shall effect forthwith suspension of future performance of the Required LendersAgreement. The party so notified may initiate arbitration under Section 19.5, when taken together by filing a request for arbitration with all other ERISA Events the American Arbitration Association, not later than ten (10) days thereafter, and termination shall occur if (a) arbitration is not so initiated, or (b) the arbitrator finds that have occurred termination was reasonable.
(vi) Sponsor may provide notice of termination any time for all periods any reason after October 1, 1999, and are then outstandingin any such case, could reasonably such termination will be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000effective twelve (12) months thereafter.
Appears in 2 contracts
Sources: Sponsored Research Agreement (Genvec Inc), Sponsored Research Agreement (Genvec Inc)
Termination Events. (a) The occurrence Employment Term will end, and the parties will not have any rights or obligations under this Agreement (except for the rights and obligations under those Sections of any one or more this Agreement that are continuing and will survive the end of the Employment Term, as specified in Section 9.10 of this Agreement) on the earliest to occur of the following events shall constitute (each a "Termination Event:Date"):
(a1) Any Originator shall fail the death of Employee;
(i2) to make any payment or deposit required hereunder when due and, the termination of Employee’s employment as a result of Employee’s Disability (as defined in Section 4.1(b) of this Agreement) of Employee;
(3) the termination of Employee's employment by Employee without Good Reason (as defined in Section 4.1(d) of this Agreement);
(4) the termination of Employee's employment by the Company for any such payment or deposit which is not Cause (as defined in respect Section 4.1(c) of principal, such failure continues this Agreement);
(5) the termination of Employee's employment by the Company without Cause;
(6) the termination of Employee’s employment by Employee for Good Reason within three (3) consecutive Business Daysmonths of the inception of the event giving rise to the Good Reason; provided, or however, the Employee has first given the Employer written notice of the Good Reason within ten (ii10) business days of its occurrence and thirty (30) days following such notice to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven correct it; or
(7) daysthe termination of Employee’s employment by the Company within twelve (12) after the earlier months of Change in Control (I) the date such Originator receives notice as defined in Section 8.1 of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachthis Agreement).
(b) Any representation, warranty, certification or statement made by any Originator in For the purposes of this Agreement, any other Transaction Document "Disability" means Employee's inability, whether mental or physical, to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten perform the normal duties of Employee's position for ninety (1090) days after (which need not be consecutive) during any twelve (12) consecutive month period, and the earlier of (I) the effective date such Originator receives notice of such breach from BuyerDisability shall be the day next following such ninetieth (90th) day. If the Company and Employee are unable to agree as to whether Employee is disabled, the Agent or any Lender Group Agent question will be decided by a physician to be paid by the Company and designated by the Company, subject to the approval of Employee (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall which approval may not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectunreasonably withheld) whose determination will be final and binding on the parties.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 2 contracts
Sources: Employment Agreement (Sinclair Broadcast Group Inc), Employment Agreement (Sinclair Broadcast Group Inc)
Termination Events. The occurrence of If any one or more of the following events (“Termination Events”) shall constitute a Termination Eventoccur:
(a) Any Originator the Borrower or any other Transaction Party shall fail (i) to make when due any payment or deposit of principal required hereunder or any other Transaction Document or (ii) to make when due andany payment of interest, for any such payment fees or deposit which is not in respect of principal, other amounts required hereunder and such failure continues for three (3) consecutive Business Days, or ;
(iib) any Transaction Party shall fail to perform or observe any term, covenant contained or agreement (i) set forth in Article 6 hereunder, (ii) set forth in Section 4.2 5.01(e), (other than Sections 4.2(af) and 4.2(c)(g) or Section 5.02(a) and such failure shall remain unremedied for one five (15) Business Day Days following the earlier to occur of (A) written notice thereof by the Administrative Agent to the Servicer or the Borrower, as applicable, or (B) the Servicer’s or the Borrower’s actual knowledge of such failure or (iii) to perform or observe any covenant or agreement otherwise set forth in the Transaction Documents (other than as referred to in clause clauses (i) and (ii) of this paragraph (a)b) under any other Transaction Document to which it is a party or otherwise in this Article 7) and such failure shall continue remain unremedied for fifteen ten (1510) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days following the earlier to occur of (IA) written notice thereof by the Administrative Agent to the Servicer or the Borrower, as applicable, or (B) the date such Originator receives notice Servicer’s or the Borrower’s actual knowledge of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.failure;
(bc) Any any representation, warranty, certification or statement made by any Originator Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto hereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.made;
(d) Any Originator or (i) any of its Subsidiaries Transaction Party shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.; or any proceeding shall be instituted by or against such Transaction Party seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for a substantial part of its property (and in the case of an involuntary proceeding, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered), or (ii) any Transaction Party shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (d);
(e) An As at the end of any Calculation Period:
(i) the average of the Delinquency Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 3.50% at any time;
(ii) the average of the Dilution Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 12.00% at any time; or
(iii) the average of the Default Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 3.50% at any time;
(f) any Originator shall for any reason cease to transfer, or cease to have the legal capacity or otherwise be incapable of transferring, Receivables to the Borrower, as purchaser under the Sale Agreement, or any “Servicer Event of Bankruptcy Default” or “Potential Servicer Event of Default” shall occur under the Sale Agreement;
(g) a Change in Control shall occur;
(h) the Performance Undertaking shall cease to be effective (other than in accordance with respect its terms) or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any Originator proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder;
(i) one or more final judgments shall be entered against any Originator, the Performance Guarantor or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments subsidiaries for the payment of money in an the aggregate amount in excess of $50,000,00010,000,000 or more, individually or the equivalent thereof in the aggregateanother currency, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant execution or bond to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.secure appeal;
(j) An any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(k) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (k) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; provided, further, for the avoidance of doubt, the existence of any right or option of any holder of any convertible Indebtedness to convert any Indebtedness represented thereby into equity interests of the Company and/or any cash settlement (including in respect of fractional shares) in connection with such conversion or the conversion of such Indebtedness shall not constitute a Termination Event under this clause (k);
(l) [Reserved];
(m) an ERISA Event shall have occurred that, in the reasonable opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstandingoccurred, could reasonably be expected to result in liability a Material Adverse Effect;
(n) the security interest granted pursuant to Article 10 shall for any reason fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby (other than any immaterial portion of the Performance Guarantor Collateral), except as permitted by the terms of this Agreement, or this Agreement shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Transaction Document; provided that no Event of Default shall occur under this clause (n) as a result of any loss of perfection or priority caused by the failure of the Administrative Agent to file UCC continuation statements;
(o) any material provision of any of the Transaction Documents for any reason ceases to be valid, binding and enforceable in accordance with its Subsidiaries terms (or any Transaction Party shall challenge the enforceability of any of the Transaction Documents or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Transaction Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms);
(p) [Reserved];
(q) an Availability Shortfall exists at any time and the Borrower has not repaid or cash collateralized the amount of such Availability Shortfall within one Business Day of written notice in accordance with Section 2.08;
(r) Consolidated EBITDA of the Company and its subsidiaries for any four consecutive fiscal quarter period ending on the date set forth below is less than the amount set forth opposite such period: September 30, 2011 $ 125,000,000 December 31, 2011 $ 125,000,000 March 31, 2012 $ 160,000,000 June 30, 2012 $ 160,000,000 September 30, 2012 $ 210,000,000 December 31, 2012 $ 250,000,000 March 31, 2013 $ 275,000,000 June 30, 2013 $ 325,000,000 September 30, 2013 $ 370,000,000 December 31, 2013 $ 415,000,000 March 31, 2014 $ 450,000,000 June 30, 2014 $ 475,000,000 September 30, 2014 $ 495,000,000 December 31, 2014 $ 495,000,000 (s) the aggregate amount of Capital Expenditures of the Company and its subsidiaries on a consolidated basis during any period set forth below exceeds the amount set forth opposite such period: For the two consecutive fiscal quarters ending December 31, 2011 $ 90,000,000 For the four consecutive fiscal quarters ending December 31, 2012 $ 200,000,000 For the four consecutive fiscal quarters ending December 31, 2013 $ 250,000,000 For the four consecutive fiscal quarters ending December 31, 2014 $ 355,000,000 ; provided that:
(i) the amount of “Maximum Capital Expenditures” set forth in the table above in respect of any “Period” in such table (a “Period”) shall be decreased by the aggregate amount of Indebtedness incurred by the Company or any subsidiary of the Company in reliance on Section 6.01(e) of the YRCW Amended Term Loan during such Period;
(ii) notwithstanding anything to the contrary contained above, to the extent that the aggregate amount of Capital Expenditures made by the Company and its subsidiaries (plus the aggregate amount of Indebtedness incurred as described in the foregoing clause (i)) in any Period that reduced the amount of Capital Expenditures that could be made in such Period pursuant to the table above (but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) is less than the maximum amount set forth in the table above, fifty percent (50%) of the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with such Rollover Amount deemed utilized first in such succeeding fiscal year); and
(iii) in addition to the Capital Expenditures permitted pursuant to the preceding paragraphs of this clause (s), the Company and its subsidiaries may make additional Capital Expenditures at any time in an aggregate amount not to exceed the portion, if any, of the Available Basket Amount (as defined in excess the YRCW Amended Term Loan) on the date of $50,000,000.such Capital Expenditure that the Company elects to apply to this clause (s), so long as no Termination Event has occurred and is continuing or would result therefrom;
Appears in 1 contract
Termination Events. The occurrence of any one or more Each of the following events or occurrences described in this Section 9.1 shall constitute a “Termination Event:” (each event which with notice or the passage of time or both would become a Termination Event being referred to herein as a “Potential Termination Event”):
(a) Any the Amortization Date shall have occurred;
(b) any Originator shall fail (i) to make when due any payment or deposit required hereunder when due and, for any to be made by such payment Originator under this Agreement or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Basic Document to which it is a party and such failure shall continue remain unremedied for fifteen two (152) consecutive days Business Days;
(c) any representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement or in any other than Section 4.2(c), Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the Buyer or the Servicer to the Agent shall be seven untrue or incorrect in any material respect when made and, if capable of correction, shall not be corrected within thirty (730) days) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Senior Officer of such Originator knows has knowledge thereof or should after written notice of such failure shall have known been given by the Agent to the Buyer and the Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any breach described above is cured in the manner provided in Section 4.5, or by the Originator’s making of an indemnification payment under Section 10.1 on account of such breach., in each case in accordance with this Agreement (and as and to the extent permitted under the RLSA), such breach shall not constitute an Event of Default;
(bd) Any representation, warranty, certification or statement made by any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, Agreement or any other Transaction Basic Document to which it is a party on its part to be performed or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any observed and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten continues unremedied for more than thirty (1030) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Senior Officer of such Originator knows has knowledge thereof or should have known after written notice of such breach; provided, however, that failure shall have been given by the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior Agent to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for Buyer and the benefit of creditors.Servicer; or
(e) An any Event of Bankruptcy shall occur with respect to any Originator or any of its SubsidiariesOriginator.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator Either Seller or the Servicer shall fail (i) to make any payment or deposit required hereunder pay when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) amounts required to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) be paid to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBuyers pursuant hereto.
(b) The occurrence of any "Event of Default" (as defined in the Credit Agreement).
(c) Any representation, warranty, certification representation or statement warranty made or deemed to have been made by or on behalf of a Seller or any Originator Subsidiary in this AgreementAgreement or the Assignments or on behalf of a Seller or any Subsidiary in any certificate, statement, report or other writing furnished by or on behalf of a Seller to the Agent or a Buyer pursuant to this Agreement or the Assignments or any other Transaction Document to which it is a party instrument, document or in any other document delivered pursuant thereto agreement shall prove to have been incorrect false or misleading in any material respect when made on the date as of which the facts set forth are stated or certified or deemed made and, with respect to any such representation, warranty, certification have been stated or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.certified;
(d) Any Originator Either Seller shall fail to comply with any agreement, covenant, condition, provision or term contained in this Agreement or the Assignments (and such failure shall not constitute a Termination Event under any of the other provisions of this Section 11.1) and such failure to comply shall continue for 30 calendar days after notice thereof to that Seller by the Agent;
(e) A Seller or any of its Subsidiaries Subsidiary shall become insolvent or shall generally not pay its debts as such debts become due they mature or shall admit in writing its inability to pay its debts generally apply for, shall consent to, or shall make acquiesce in the appointment of a general assignment custodian, trustee or receiver of the Seller or Subsidiary or for a substantial part of the benefit property thereof or, in the absence of creditors.
(e) An Event such application, consent or acquiescence, a custodian, trustee or receiver shall be appointed for a Seller or a Subsidiary or for a substantial part of Bankruptcy the property thereof and shall occur with respect to any Originator or any of its Subsidiaries.not be discharged within 30 days;
(f) A Change of Control Any bankruptcy, reorganization, debt arrangement or other proceedings under any bankruptcy or insolvency law shall occur.be instituted by or against a Seller or a Subsidiary, and, if instituted against a Seller or a Subsidiary, shall have been consented to or acquiesced in by the Seller or Subsidiary, or shall remain undismissed for 30 days, or an order for relief shall have been entered against a Seller or a Subsidiary, or a Seller or any Subsidiary shall take any corporate action to approve institution of, or acquiescence in, such a proceeding;
(g) One Any dissolution or more final liquidation proceeding shall be instituted by or against a Seller or a Subsidiary and, if instituted against a Seller or Subsidiary, shall be consented to or acquiesced in by the Seller or Subsidiary or shall remain for 30 days undismissed, or a Seller or any Subsidiary shall take any corporate action to approve institution of, or acquiescence in, such a proceeding;
(h) A judgment or judgments for the payment of money in an amount excess of the sum of $2,000,000 in the aggregate shall be rendered against a Seller or a Subsidiary and the Seller or Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, prior to any execution on such judgments by such judgment creditor, within 30 days from the date of entry thereof, and within said period of 30 days, or such longer period during which execution of such judgment shall be stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(i) The institution by a Seller or any ERISA Affiliate of steps to terminate any Plan if in order to effectuate such termination, the Seller or any ERISA Affiliate would be required to make a contribution to such Plan, or would incur a liability or obligation to such Plan, in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien2,000,000, or the institution by the PBGC shall impose a lien pursuant of steps to Section 4068 of ERISA with regard to terminate any of the Receivables, Collections and/or Related Security.Plan;
(ij) Any Plan The maturity of any Originator indebtedness of a Seller or any a Subsidiary in an aggregate amount of its respective ERISA Affiliates:
(i) $2,000,000 or more shall be accelerated, or a Seller or a Subsidiary shall fail to be funded pay any such indebtedness in accordance with such amount when due or, in the minimum funding standard case of such indebtedness payable on demand, when demanded, or any event shall occur or condition shall exist and shall continue for more than the period of grace, if any, applicable thereto and shall have the effect of causing, or permitting (any required by Section 412 notice having been given and grace period having expired) the holder of any such indebtedness or any trustee or other Person acting on behalf of such holder to cause, such indebtedness in such amount to become due prior to its stated maturity or to realize upon any collateral given as security therefor;
(k) Any Person, or group of Persons acting in concert, that owned less than 5% of the Tax Code shares of any voting class of stock of PDC shall have acquired more than 50% of the shares of such voting stock;
(l) This Agreement or Section 302 of ERISA for either Guaranty shall, at any plan year time after the execution and delivery hereof, cease to be in full force and effect or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by a Seller, or a waiver of such standard is sought Seller shall deny that it has any or granted with respect to such Plan further liability or obligation under Section 412 this Agreement or that Seller's Guaranty;
(m) Any execution or attachment shall be issued whereby any substantial part of the Tax Code property of a Seller or Section 303 of ERISAany Subsidiary shall be taken or attempted to be taken and the same shall not have been vacated or stayed within 30 days after the issuance thereof; or
(iin) is being, or within the five years preceding the Closing Date, has been, terminated or the subject PDSI shall cease to be a wholly-owned Subsidiary of termination proceedings under Section 4041(c) of ERISAPDC; or
11.1 (iiio) That certain Escrow Agreement dated June 20, 1997 between PDC, PDSI, the Agent and U.S. Bank Trust National Association shall require such Originator be terminated, amended or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of otherwise modified without the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable lawMajority Buyers' prior written consent, or Title IV ERISA other than U.S. Bank Trust National Association shall resign or be removed as escrow agent thereunder and not be replaced with a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability substitute escrow agent satisfactory to the PBGC or a Plan that would have a Material Adverse EffectMajority Buyers.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more Each of the following events shall constitute a "Termination Event" under this Agreement:
(a) Any Originator shall fail One or more final, non-appealable judgments or decrees for the payment of money in an aggregate amount in excess of $5,000,000 (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not net of insurance proceeds received in respect of principalany such judgment or decree) shall be entered against the Parent and/or its Subsidiaries and remain outstanding; or
(b) An Event of Default shall have occurred and be continuing; or
(c) The amount on deposit in the Reserve Account at any time shall be less than the Required Reserve Account Amount at such time; or
(d) The Internal Revenue Service shall file notice of a lien against the Seller pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Seller; or
(e) A Servicer Termination Event shall have occurred and be continuing; or
(f) The failure of the Parent, such failure continues for three (3) consecutive Business Days, HomePride or (ii) any Subsidiary of the Parent or HomePride to perform or observe pay when due any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) amounts due under any other Transaction Document agreement to which it any such Person is a party and such failure shall continue for fifteen (15) consecutive days (other under which Debt greater than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it $5,000,000 is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000governed; or the default by the Parent, HomePride or any Originator Subsidiary of the Parent in the performance of any term, provision or condition contained in Sections 6.01Aany agreement or instrument to which any such Person is a party and under which any Debt owing by the Parent, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A HomePride or 6.16A any Subsidiary of the Senior Credit Agreement Parent greater than $5,000,000 was created or is governed, regardless of whether such event is an "event of default" or "default" under any such agreement; or any such Indebtedness of an Originator Debt owing by the Parent, HomePride or any Subsidiary of its Affiliates the Parent greater than $5,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) ), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Champion Enterprises Inc)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event”) shall occur and be continuing:
(a) Any Originator the Borrower or the Servicer shall fail default in the payment of any amount required to be made under the terms of this Agreement; or
(i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) the Borrower shall fail to perform or observe in any covenant contained in Section 4.2 (material respect any other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or other agreement (other than as referred to of the Borrower set forth in clause (i) of this paragraph (a)) under Agreement and any other Transaction Document to which it is a party and such failure shall continue for fifteen party, or (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (Iii) the date such Originator receives notice shall fail to perform or observe in any material respect any term, covenant or agreement of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator set forth in this Agreement, any other Transaction Document to which it is a party or party, in any other document delivered pursuant thereto each case when such failure continues unremedied for more than 20 days after written notice thereof shall prove to have been incorrect in given by the Agent or any material Secured Party to such Person; or
(c) an Insolvency Event shall occur with respect when to the Borrower or the Originator; or
(d) a Servicer Termination Event occurs; or
(e) any representation or warranty made or deemed made andhereunder shall prove to be incorrect as of the time when the same shall have been made, and such incorrect representation or warranty shall not have been eliminated or otherwise cured within a period of 20 days after written notice thereof shall have been given by the Agent or any Secured Party to the Borrower; or
(f) the amount of Advances Outstanding shall exceed the Maximum Availability, for more than three consecutive Business Days; or
(g) an Overcollateralization Shortfall exists and continues unremedied for a period of three Business Days; or
(h) a Required Equity Shortfall exists and continues unremedied for a period of three Business Days; or
(i) the Borrower or the Originator agrees or consents to, or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy in whole or in part that could have a material adverse effect upon the Loans or the interests of the Conduit Lender; or
(j) any Change in Control of the Borrower or Originator occurs; or
(k) on each day during a period of five consecutive days, either (i) the aggregate Hedge Notional Amount is less than the product of the Hedge Percentage on such day and the Hedge Amount on that day, or (ii) any Hedge Transaction fails to meet the requirements set forth in subsection 5.2(a); or
(l) the Trustee on behalf of the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(m) the Rolling Three-Month Portfolio Yield does not equal or exceed 5.0% and such failure continues for a period of 15 consecutive days; or
(n) the Rolling Three-Month Default Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $22,600,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(o) the Rolling Three-Month Charged-Off Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $15,100,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(p) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 15.0%; or
(q) both ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(r) the Borrower or the Originator defaults in making any payment required to be made with respect to any material recourse debt or other obligation to which either is a party and such representation, warranty, certification or statement that was so incorrect and which can be cured, default is not cured within ten (10) days after the earlier of (I) relevant cure period or any event or condition shall occur or exist that would cause or permit the date such Originator receives notice acceleration of such breach from Buyerrecourse debt or other obligation, the Agent whether or any Lender Group Agent and (II) the date an Authorized Officer of not such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision event or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement has been waived or any such Indebtedness of an Originator recourse debt or any of its Affiliates other obligation shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.maturity; or
(di) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments judgment for the payment of money in an amount excess of 10% of the Tangible Net Worth of the Originator shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall not have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise during the pendency of such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $50,000,0001,000,000 or $100,000, individually or respectively, in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan settlement of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAlitigation; or
(iit) is being, the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the five years preceding meaning of the Closing Date1940 Act or any rules, has been, terminated regulations or orders issued by the subject of termination proceedings under Section 4041(c) of ERISASEC thereunder; or
(iiiu) shall require such the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances by the Borrower made by the Conduit Lender, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any of its ERISA Affiliates to provide security under Section 401(a)(29) other person or 412 entity of the Tax Code 1940 Act or Section 306 or 307 of ERISAthe rules and regulations promulgated thereunder; or
(ivv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(jw) An ERISA Event a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the legal conclusions made in the true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; or
(x) the Borrower or its Affiliates shall enter into a binding engagement letter or similar letter of intent with any third party contemplating a structured financing transaction including the Collateral or assets comparable to the Loans included in the Collateral as of any date prior to the date on which the Borrower or its Affiliates shall have occurred that, consummated (or irrevocably committed to consummate) one or more structured financing transactions in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result which BMO or an Affiliate thereof shall act as administrative agent or sole or lead initial purchaser (or in liability of the Performance Guarantor or any of its Subsidiaries in a comparable capacity) representing an aggregate notional amount of at least $250,000,000, if BMO shall have agreed to negotiate in excess good faith to offer to the Borrower or its affiliates substantially similar terms for a structured financing transaction comparable to the financing contemplated by such engagement letter or letter of $50,000,000intent (or similar agreement or undertaking).
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Termination Events. The occurrence of any one or more Any of the following events acts or occurrences shall constitute a Termination Event under this Agreement (each, a “Termination Event:”):
(a) Any Originator shall fail (i) to make any payment gross negligence, willful misconduct, bad faith or deposit required hereunder when due and, for any such payment or deposit which is not in respect felony act on the part of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Servicer; or
(b) Any representation, warranty, certification any failure on the part of Servicer to observe or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect perform in any material respect when made any other of the covenants or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and agreements thereof contained in this Agreement which can be cured, is not cured within ten continues unremedied for a period of thirty (1030) days after the earlier of (I) the date such Originator receives on which written notice of such breach from Buyerfailure, requiring the Agent or any Lender Group Agent and (II) same to be remedied, shall have been given to Servicer by the date an Authorized Officer TL Member on behalf of such Originator knows or should have known of such breachLender; provided, however, that the materiality threshold in the preceding clause if such covenant or agreement is capable of being cured and Servicer is diligently pursuing such cure such thirty (30) day period shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.extended for an additional forty-five (45) days; or
(c) Failure any breach on the part of Servicer of any Originator representation or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition warranty thereof contained in Sections 6.01Athis Agreement which materially and adversely affects the interests of Lender and which continues unremedied for a period of thirty (30) days after the date on which notice of such breach, 6.05Arequiring the same to be remedied, 6.06Ashall have been given to Servicer by the TL Member on behalf of Lender; provided, 6.08Ahowever, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A that if such breach is capable of the Senior Credit Agreement or any being cured and Sub-Servicer is diligently pursuing such Indebtedness of an Originator or any of its Affiliates cure such thirty (30) day period shall be declared to be due and payable or required to be prepaid extended for an additional forty-five (other than by a regularly scheduled payment45) prior to the date of maturity thereof.days; or
(d) Any Originator a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its Subsidiaries affairs, shall generally not pay have been entered against Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or
(e) Servicer or Initial Servicer (if different from Servicer) shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its debts as such debts become due property; or
(f) Servicer or Initial Servicer (if different from Servicer) shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or shall reorganization statute or make a general an assignment for the benefit of its creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.; or
(g) One a determination by the TL Member in its reasonable discretion that the Servicer is no longer capable of performing its services under this Agreement due to a material financial deterioration of the Servicer or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty Initial Servicer (60) consecutive days without a stay of execution.if different from Servicer),
(h) The Internal Revenue Service upon receipt from a Borrower, any failure by Servicer to deposit into, or to remit to Lender for deposit on a timely basis, any amount required to be so deposited or remitted under this Agreement; provided, however, that the failure by Servicer to deposit or remit amounts shall file notice of not constitute a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of Termination Event unless (i) seven any such failure (7x) days after inception and continues unremedied for one (1) Business Day following the date on which written notice of such failure is provided, (ii) knowledge by any Secured Party such failure occurs more than once in any period of such lien, twelve (12) consecutive months or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) any such late deposit is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(cnot accompanied by payment by Servicer (from its own funds without reimbursement therefor) of ERISAinterest on the amount of such late deposit or remittance accrued at an annual rate equal to the Prime Rate (as defined below), as in effect from time to time, for the day on which Servicer was required to make such deposit, and the Prime Rate as in effect from time to time plus three percentage points (3%), for each day thereafter until the date on which Sub-Servicer actually makes such deposit or remittance. For purposes of the preceding sentence, “Prime Rate” shall mean a rate equal to the “Prime Rate” published in the “Money Rates” section in the New York edition of The Wall Street Journal on or before the related date of calculation, or, if more than one such rate is set forth therein, the highest of such rates (and any change in such rate shall be effective on the date on which such rate(s) are so published); or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Servicing and Asset Management Agreement (BRT Realty Trust)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator TriMas Corp., TriMas LLC, the Transferor, any Seller or the Collection Agent shall fail (i) to make any payment or deposit required to be made by it hereunder or under any of the Transaction Documents when due and, for any such payment hereunder or deposit which is not in respect of principal, thereunder and such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Day; or
(b) Any any representation, warranty, certification or statement made by TriMas Corp., the Transferor, the Collection Agent or any Originator Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made made; provided that no such event shall constitute a Termination Event unless such event shall continue unremedied for a period of ten (10) days from the date a Responsible Officer of the Transferor obtains knowledge thereof; provided, further, that no grace period shall apply to Sections 3.01(c), 3.01(d), 3.01(j), 3.01(r) and 3.01(s) of this Agreement (and, for the avoidance of doubt, the cure period described in the first proviso of this Section 7.01(b) shall not apply to payments required to be made pursuant to Section 2.10(b)); and provided, further, that no such event shall constitute a Termination Event if the Transferor shall have timely paid to the Collection Agent the Deemed Collection required to be paid as a result of such event in accordance with respect to Section 2.10(b); or
(c) TriMas Corp., the Transferor, any Seller or the Collection Agent shall default in the performance of any payment, covenant or other undertaking (other than those covered by clause (a) above or clause (h) below) under any Transaction Document and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within default shall continue for ten (10) days after the earlier a Responsible Officer of (I) the date such Originator receives notice of such breach from BuyerTriMas Corp., TriMas LLC, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; Transferor or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity Collection Agent has knowledge thereof.; or
(d) Any Originator the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its Subsidiaries shall generally not pay or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.scheduled maturity; or
(e) An any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent, any Originator Seller, TriMas Corp., or any of its Subsidiaries.; or
(f) A Change after the filing in the appropriate offices of Control shall occur.the financing statements described in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e), the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims (other than, in the case of the Transferor, Liens for taxes, assessments or other governmental charges that are not yet due and payable and, in the case of any Seller, Permitted Originator Encumbrances); or
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, a Collection Agent Default shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.have occurred; or
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the ReceivablesTransferor, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienTriMas Corp., or any Seller shall enter into any corporate transaction or merger that is not otherwise permitted by this Agreement or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.Receivables Purchase Agreement; or
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) there shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding have occurred since the Closing Date, has been, terminated Date any event or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates condition which could reasonably be expected to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.; or
(j) An (i) the Percentage Interest exceeds the Maximum Percentage Interest unless the Transferor reduces the Net Investment from previously received Collections or other funds available to the Transferor or increases the balance of the Receivables on the next Business Day following such breach so as to reduce the Percentage Interest to less than or equal to 100%; or (ii) the Net Investment shall exceed the Facility Limit; or
(k) the average Dilution Ratio for the three preceding Calculation Periods exceeds 9.0%; or
(l) the average Default Ratio for the three preceding Calculation Periods exceeds 3.0%; or
(m) the average Delinquency Ratio for the three preceding Calculation Periods exceeds 5.0%; or
(n) a Responsible Officer of the Transferor receives notice or becomes aware that a notice of lien has been filed against TriMas Corp., TriMas LLC, the Transferor or the Collection Agent under Section 412(n) of the Code or Section 302(f) of ERISA Event shall have occurred thatfor a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(o) the Receivables Purchase Agreement is terminated; or
(p) TriMas Corp., TriMas LLC and the Sellers (in the opinion aggregate) shall fail to maintain 100% ownership of the Required LendersTransferor; or
(q) TriMas Corp., when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor TriMas LLC or any of its Subsidiaries default in an aggregate amount the observance or performance of Section 6.12 or 6.13 of the Credit Agreement (whether or not such agreement remains in excess of $50,000,000effect).
Appears in 1 contract
Termination Events. The occurrence of any one or more (a) Each of the following events shall constitute a “Termination Event”:
(ai) Any Originator shall fail a default in the payment of any Monthly Interest Payment Amount on any Payment Date and such default continues unremedied for a period of two Business Days or more;
(ii) a default in the payment of the Loan Balance on the Final Scheduled Payment Date or on a Payment Date fixed for optional prepayment of the Loan pursuant to Section 2.06;
(iii) the occurrence of a Level II Trigger Event;
(iv) a failure on the part of the Borrower to make any payment, transfer or deposit required by the terms of any Basic Document (other than as set forth in clauses (i) to make any payment or deposit required hereunder when due and, for any and (ii) above) on the day such payment or deposit is required to be made, which is not in respect default or failure continues unremedied for three Business Days after the earlier of principal, (i) receipt of written notice of such failure continues for three (3) consecutive Business Days, by the Borrower from the Administrative Agent or any Lender or (ii) discovery of such failure by a Responsible Officer of the Borrower;
(v) a failure by the Borrower to duly to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement (other than as referred to of the Borrower contained in clause (i) of this paragraph (a)) under Agreement or any other Transaction Borrower Basic Document to which it is a party and such failure shall continue remains unremedied for fifteen (15) consecutive 30 calendar days (other than Section 4.2(c), which shall or such longer period not in excess of 60 days as may be seven (7) reasonably necessary to remedy that failure; provided that such failure is capable of remedy within 60 days) after the earlier earliest to occur of (Ii) discovery by a Responsible Officer of the Borrower, (ii) the date such Originator receives Responsible Officer should have discovered such failure and (iii) receipt of a written notice of such breach failure from Buyerthe Administrative Agent, any Lender, the Collateral Custodian or the Backup Servicer;
(vi) any representation, warranty or certification made or deemed to be made by the Borrower under this Agreement or any other Borrower Basic Document, or any Monthly Report, any Monthly Loan Tape or other information required to be given by the Borrower or the Servicer to the Administrative Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representationLender, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been false or incorrect in any material respect when made or deemed made andor delivered, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) remains unremedied for 30 calendar days after the earlier to occur of (IA) discovery by a Responsible Officer of the date such Originator receives Borrower and (B) receipt of a written notice of such breach failure from Buyer, the Administrative Agent or any Lender Group Agent and Lender;
(IIvii) the date occurrence of an Authorized Officer Insolvency Event (which, if involuntary, remains unstayed for more than 45 days) relating to any Regional Management Entity;
(viii) a Servicer Termination Event shall have occurred;
(ix) the Borrower shall become (A) an “investment company” within the meaning of such Originator knows the Investment Company Act or should have known relies solely on the exemption from the definition of such breach; provided“investment company” in Section 3(c)(1) or 3(c)(7) of the Investment Company Act (although other exemptions may be available) or the arrangements contemplated by the Basic Documents shall require the Borrower to register as an “investment company” within the meaning of the Investment Company Act or (B) a “covered fund” for purposes of the ▇▇▇▇▇▇▇ Rule;
(x) a regulatory, however, tax or accounting body has ordered that the materiality threshold in activities of the preceding clause shall not Borrower or any Affiliate of the Borrower contemplated hereby be applicable with respect to any representationterminated or, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure as a result of any Originator other event or circumstance, the activities of the Borrower or any Affiliate of the Borrower contemplated hereby may reasonably be expected to cause the Borrower or any of its respective Affiliates to pay suffer materially adverse regulatory, accounting or tax consequences;
(xi) any Indebtedness when due material adverse change in excess the operations of $50,000,000; the Servicer, Regional Management, the Borrower or any other event which materially affects the ability of the Servicer, Regional Management or the default by Borrower to either collect the Receivables or to perform its obligations under any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared Basic Document to be due and payable or required to be prepaid (other than by which it is a regularly scheduled payment) prior to the date of maturity thereof.party;
(dxii) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service IRS shall file notice of a lien Lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Borrower or Regional Management and such lien shall continue until not have been released within five Business Days after the earlier of (i) seven (7) days after inception and (ii) the Borrower or Regional Management having actual knowledge by thereof or written notice thereof from the Administrative Agent or any Secured Party of such lienLender, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.assets of the Borrower or Regional Management and such Lien shall not have been released or stayed within 30 days after the earlier of the Borrower or Regional Management having actual knowledge thereof or written notice thereof from the Administrative Agent or any Lender;
(ixiii) Any Plan the Administrative Agent shall fail for any reason to have a first priority perfected security interest in any material portion of the Collateral (subject to Permitted Liens), which failure shall continue for five Business Days after the earlier of the Borrower or the Servicer having actual knowledge thereof or the Borrower or the Servicer having received written notice thereof from the Administrative Agent or any Lender;
(xiv) a Change in Control shall occur;
(xv) the Servicer, Regional Management or the Borrower shall enter into any transaction or merger whereby it is not the surviving entity or the Borrower shall enter into any merger;
(xvi) an event of default occurs, or an event occurs which, with the giving of notice or the passage of time or both, would constitute an event of default, under any agreement of any Originator Regional Management Entity in connection with any Indebtedness of $1,000,000 or more (in the case of the Borrower), or $5,000,000 or more (in the case of Regional Management or any of its respective ERISA Affiliates:Subsidiaries other than the Borrower, which for the avoidance of doubt shall not include events of termination or similar events under financing agreements entered into by Subsidiaries that are structured as special purpose entities, provided that no events of termination or similar events occur under such financing agreements other than due to actions or activities of such Subsidiaries;
(ixvii) any of Regional Management, any Originator or the Borrower shall (A) have one or more final nonappealable judgments entered against it by a court of competent jurisdiction in excess of, in the aggregate, in the case of (1) Regional Management or Regional Management and all Originators, $5,000,000, (2) any Originator, $5,000,000 or (3) the Borrower, $1,000,000, in each case which judgment(s) shall fail to be funded not have been discharged or stayed within 30 days, (B) enter into one or more settlements in accordance with excess of, in the minimum funding standard required aggregate, in the case of (1) Regional Management or Regional Management and all Originators, $20,000,000, (2) any Originator, $5,000,000 or (3) the Borrower, $1,000,000 or (C) have a penalty or fine assessed against it by Section 412 any Governmental Authority in excess of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA$10,000,000; or
(iixviii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(cany Basic Document shall cease to be in full force and effect (other than in accordance with its terms) of ERISA; or
(iii) shall require such Originator or any of Regional Management Entity shall so assert in writing or otherwise seek to terminate or disaffirm its ERISA Affiliates to provide security obligations under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectBasic Document.
(jb) An ERISA Event shall have occurred thatUpon the occurrence of any Termination Event, in the opinion Administrative Agent shall, at the request, or may with the consent, of the Required Lenders, when taken together by notice to the Borrower (with a copy to the Collateral Custodian and the Account Bank), declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and, upon such declaration, the Loan and all other ERISA Events amounts owing by the Borrower under this Agreement shall be accelerated and become immediately due and payable; provided, that have occurred for all periods and are then outstandingin the event that a Termination Event described in Section 10.01(a)(ii) or 10.01(a)(vii) has occurred, could reasonably be expected to result in liability of the Performance Guarantor Termination Date shall automatically occur, without demand, protest or any notice of its Subsidiaries in an aggregate amount in excess any kind, all of $50,000,000which are hereby expressly waived by the Borrower.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any (i) the Collection Agent (if then any Person designated by the Seller is the Collection Agent is the Originator or an affiliate of the Originator), the Seller, GP, Inc. either Parent, or the Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (iii) of this paragraph (aSection 7.1(a)) or under any other Transaction Document to which it is a party the Transfer Agreement or the Parent Undertaking, and such failure shall continue remain unremedied for fifteen ten (1510) consecutive days (other than Section 4.2(c), which shall be seven (7) days) Business Days after the earlier to occur of knowledge thereof on the part of the Collection Agent or, the Seller or either Parent (Ias applicable) the date such Originator receives or notice of such breach from Buyer, thereof given by the Agent or any Lender Group Managing Agent and to the Seller, or (IIiiiii) the date Collection Agent (if then any Person designated by the Seller is the Collection Agent is the Originator or an Authorized Officer affiliate of the Originator), the Originator, the Seller, either Parent or GP, Inc. shall fail to make any payment or deposit to be made by it hereunder or, under the Fee Letter or under the Parent Undertaking when due and such Originator knows or should have known of such breachfailure shall remain unremedied for one (1) Business Day.
(b) Any representation, warranty, certification or statement made by any Originator the Seller, the Collection Agent or GP, Inc. in this Agreement, any other Transaction Document to which it is a party Agreement or in any other document delivered pursuant thereto hereto or by the Originator under the Transfer Agreement or by either Parent under the Parent Undertaking shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(ci) Failure of any Originator The Seller, GP, Inc., the Originator, The Bon-Ton Stores, Inc.either Parent or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, GP, Inc., thean Originator, The Bon-Ton Stores, Inc.either Parent or any of their respective Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, dissolution, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property and, in the case of any proceeding instituted against an Originator, either Parent or any of their respective subsidiaries (other than GP, Inc. or the Seller) such proceeding shall remain undismissed or unstayed for sixty (60) days or the applicable court shall enter a decree or order granting the relief sought in such proceeding, or (ii) any judicial or nonjudicial dissolution of the Seller shall occur, or an event of withdrawal with respect to GP, Inc. as the general partner in the TBTR Partnership shall occur or (iii) the Seller, GP, Inc., the Originator, The Bon-Ton Stores, Inc.either Parent or any of their respective Subsidiaries shall take any corporate or partnership action to authorize any of the actions set forth in clause (i) or clause (ii) above in this subsection (c).
(i) The Seller, TBTR Partnership, GP, Inc. or the Originator shall fail to observe or perform any covenant, condition or provision of the Transfer Agreement, and such failure shall have continued beyond any applicable cure period thereunder, or (ii) the Seller or the Originator, as applicable, shall have waived or relinquished its rights under the Transfer Agreement with respect to any such failure or (iii) the “Termination Date” in the Transfer Agreement shall have occurred, or (iii) the Originator for any reason shall cease to sell, or the Seller for any reason shall cease to buy, “Receivables” under the Transfer Agreement.
(e) An Event of Bankruptcy The three month rolling average Excess Spread shall occur with respect to any Originator or any of its Subsidiariesbe less than 2%.
(fi) A The Originator shall cease to own directly 100% of shares of the outstanding capital stock of GP, Inc. entitled to vote generally for the election of directors of such corporation, (ii) GP, Inc. shall cease to own directly all of the general partnership interests in the Seller, (iii) the Originator shall cease to own directly all of the limited partnership interests in the Seller or (iv) a Change of Control shall occur.
(g) One As at the end of any fiscal month, (i) the average Delinquency Ratio in respect of the three fiscal months then most recently ended shall exceed 3.5% or, (ii) the average LossCharge-to-LiquidationOff Ratio in respect of the three fiscal months then most recently ended shall exceed 3.56.00% or more final judgments for (iii) the payment average Principal Payment Ratio in respect of money in an amount in excess of $50,000,000, individually or in the aggregate, three fiscal months then most recently ended shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of executionless than 14.0%.
(h) The Internal Revenue Service shall file notice As at the end of a lien pursuant to Section 6323 any fiscal month, the average Dilution Ratio in respect of the Tax Code with regard to any of the Receivablesthree fiscal months then most recently ended shall exceed, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception for the fiscal months ending in either December or January, 5.5%, and (ii) knowledge by for any Secured Party of such lienother fiscal months, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security4.25%.
(i) Any Plan of (h) The aggregate Adjusted Receivable Interests for all the Purchasers shall exceed 100% at any Originator or any of its respective ERISA Affiliates:
(i) time and shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or not have been cured within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectRequired Cure Period.
(j) An ERISA Event (i) The ParentBon-Ton Corp. and its Subsidiaries shall have occurred thatfail to maintain, on a consolidated basis at the end of each Fiscal Quarter of Parent a Fixed Charge Coverage Ratio for the 12-month period then ended of not less than 1.0 to 1.0.
(k) Maximum Capital Expenditures. The Bon-Ton Corp. and its Subsidiaries on a consolidated basis shall make Capital Expenditures during the following periods that exceed in the opinion aggregate the amounts set forth opposite each of such periods: Fiscal Year 2003 $32,000,000 Fiscal Year 2004 $40,000,000 Fiscal Year 2005 $45,000,000 Fiscal Year 2006 and thereafter $50,000,000 provided, however, that the amount of permitted Capital Expenditures referenced above will be increased in any Fiscal Year by the positive amount equal to the lesser of (a) fifty percent (50%) of the Required Lendersamount of permitted Capital Expenditures for the immediately prior Fiscal Year, and (b) the amount (if any), equal to the difference obtained by taking the Capital Expenditures limit specified above for the immediately prior Fiscal Year minus the actual amount of any Capital Expenditures expended during such prior Fiscal Year (the “Carry Over Amount”), and for purposes of measuring compliance herewith, the Carry Over Amount shall be deemed to be the first amount spent on Capital Expenditures in that succeeding Fiscal Year.
(l) (j) The failure ofA default or breach shall occur under any other agreement, document or instrument to which any Material Entity is a party which is not cured within any applicable grace period, and such default or breach (as defined in Section 7.2i) involves the failure to make any payment when due (whether at scheduled maturity, by acceleration, when taken together declared to be due and payable or otherwise) in respect of any Indebtedness (other than any Indebtedness with all other ERISA Events that have occurred for all periods and are then outstandingrespect to which the payee is The Bon-Ton Stores, could reasonably be expected to result in liability of the Performance Guarantor Inc. or any Affiliate thereof) outstanding (individually or of its Subsidiaries in an aggregate amount any Material Entity in excess of $50,000,0001,000,000 in the aggregate) , or (ii) causes, or permits any holder of such Indebtedness or a trustee to cause, such Indebtedness or a portion thereof in a principal amount of $5,000,000 and such failure shall remain unremedied for three (3) Business Daysexcess of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Bon Ton Stores Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator IPFS shall fail (i) to make any payment or deposit (A) of principal when required to be made by it hereunder or (B) any other obligation or amount not covered by clause (A) when required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant or agreement contained in Section 4.2 4.1(a)(i), (other than Sections 4.2(aii), (iii), (iv), (v) or (vii)(B), Section 4.1(f)(i), or Section 4.1(j) and 4.2(c)such failure shall continue for thirty (30) for one (1) Business Day consecutive days, or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) or (ii) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen ten (1510) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any representation, warranty, certification or statement made by any Originator IPFS in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates IPFS to pay any Indebtedness when due in excess of $50,000,000200,000,000 (“Material Indebtedness”); or the default by any Originator IPFS in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any Material Indebtedness was created or is governed, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A the effect of the Senior Credit Agreement which is to cause such Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of an Originator or any of its Affiliates IPFS shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator IPFS or any Subsidiary of its SubsidiariesIPFS which meets the definition of “Material Subsidiary” defined in the Credit and Security Agreement.
(fe) A Change of Control shall occur.
(gf) One or more final judgments for the payment of money in an amount in excess of $50,000,000200,000,000, individually or in the aggregate, shall be entered against any Originator IPFS on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(hg) The Internal Revenue Service shall file notice of a lien pursuant to An Amortization Event specified in Section 6323 9.1(p) of the Tax Code with regard to any of the Receivables, Collections and/or Related Credit and Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event Agreement shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000occurred.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (International Paper Co /New/)
Termination Events. The occurrence of any one or more of the following events shall constitute a be "Termination EventEvents" hereunder:
(ai) Any Originator Servicer (if Feed or any Affiliate is the Servicer) or any Sub-Servicer shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen (15) consecutive days (other more than Section 4.2(c), which shall be seven (7) daysBusiness Days, or (ii) after Seller or Servicer (if Feed or its Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the earlier case of any other payment or deposit required to be made by it hereunder, within five (I5) the date such Originator receives notice Business Days, of such breach from Buyer, the Agent or any Lender Group Agent when first due and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.payable hereunder; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by Seller, Feed, individually or in its capacity as Servicer, or any Originator other Originator, under or in connection with this Agreement, any other Transaction Document to which it is a party Document, or in any Servicer Report, Weekly Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect but only to any the extent such representationbreached representation or warranty is susceptible to cure, warranty, certification or statement that was so incorrect and which can be cured, is not cured within shall remain uncured for ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of Seller, Feed (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) this Agreement; (ii) any other Transaction Document or (iii) any other material agreement with, or other undertaking in favor of, CoBank or any of its Affiliates the Purchasers, to pay be performed or observed on the part of Seller, Feed or such Originator (as the case may be) and any such failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have been given by the Administrator, CoBank or such Purchaser, as the case may be, to the applicable non-performing party; or
(d) Seller or any Originator shall fail to make any payment in respect of any Indebtedness when due having an aggregate principal (or equivalent) amount in excess of $50,000,00010,000,000, when and as the same shall become due and payable (giving effect to any applicable grace or cure periods); or
(e) Any event or the default by condition occurs that results in any Indebtedness of Seller or any Originator having an aggregate principal (or equivalent) amount in excess of $10,000,000 becoming due prior to its scheduled maturity or that requires the performance of any termprepayment, provision repurchase, redemption or condition contained in Sections 6.01Adefeasance thereof, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit prior to its scheduled maturity; or
(f) There shall occur a Servicer Default; or
(g) This Agreement or any such Indebtedness of an Originator Purchase or any of its Affiliates Reinvestment pursuant to this Agreement shall be declared to be due and payable or required to be prepaid for any reason (other than by a regularly scheduled payment) prior pursuant to the date terms hereof) (i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of maturity thereof.
the Receivable Interest, in each Pool Asset, free and clear of any other Lien or (dii) Any Originator cease to create with respect to the items described in Section 9.1, or any the interest of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment the Administrator (for the benefit of creditors.the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(eh) An Event of Bankruptcy shall occur have occurred and remain continuing with respect to Seller, Feed, or any Originator other Originator; or
(i) The 12-month rolling average Sales Based Dilution Ratio for any CutOff Date exceeds ten percent (10%); or
(j) The 12-month rolling average Sales Based Default Ratio for any CutOff Date exceeds six percent (6%); or
(k) The monthly Sales Based Default Ratio for any Cut-Off Date exceeds ten percent (10%); or
(l) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(m) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(n) The monthly Sales Based Delinquency Ratio for any Cut-Off Date exceeds ten percent (10%); or
(o) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to Feed or any other Originator, as applicable, whether or not consecutive, any final judgment against the Seller, Feed or any other Originator, or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One their respective properties or more final judgments for the payment of money in an amount in excess of $50,000,000assets, that, individually or in the aggregatetaken together with all other final judgments so undischarged, shall be entered unsatisfied and unstayed against any Originator on claims not covered by insurance such Person or as to which the insurance carrier Persons or any of their respective assets or properties has denied its responsibilitycaused, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without or has a stay reasonable possibility of execution.causing, a Material Adverse Effect; or
(ha) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, (b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, (c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, or (d) LOL is subject to a Change in Control; or
(q) The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivables, Collections and/or Related Security assets of Seller or Feed and such lien Lien shall continue until not have been stayed or bonded in a manner satisfactory in the earlier sole discretion of the Administrator, or released within ten (i10) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBusiness Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivables, Collections and/or Related Security.
assets of Seller or Feed and such Lien shall not have been released within five (i5) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISABusiness Days; or
(iir) is beingThere shall exist any other event or occurrence that has caused, or within the five years preceding the Closing Datecould reasonably be anticipated to cause, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAa Material Adverse Effect; or
(iiis) shall require such Originator or Seller's net worth is less than $1,000,000 at any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAtime; or
(ivt) results Either of the Credit Agreements described in a liability to such Originator the definition of "JP Morgan Credit Documents," or any of its ERISA Affiliates under applicable lawreplacement credit facility acce▇▇▇▇▇▇ ▇▇ the Administrator, shall have been terminated or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, shall otherwise cease to be in full force and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.effect; or
(ju) An ERISA Event shall have occurred that, Any Originator elects at any time not to sell or contribute Receivables to Seller in the opinion accordance with Section 1.2(b) of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods Purchase and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Sale Agreement.
Appears in 1 contract
Termination Events. The employment hereunder will terminate upon the occurrence of any one or more of the following events shall constitute a (“the Termination Event:”):
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due andEmployee dies, for any such payment or deposit in which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure case the Company shall continue to pay the Base Compensation to the estate of the Employee for fifteen a period of ninety (1590) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.death;
(b) Any representationThe Company, warrantyby written notice to Employee or his personal representative, certification discharges Employee due to the inability to continue to perform the duties previously assigned to him prior to such injury or statement made disability hereunder for a continuous period exceeding 180 days by any Originator in this Agreementreason of injury, any physical or mental illness or other Transaction Document disability, which condition has been certified by a physician acceptable to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachCompany; provided, however, that prior to discharging Employee due to such disability, the materiality threshold Company shall give a written statement of findings to Employee or his personal representative setting forth specifically the nature of the disability and the resulting performance failures, and Employee shall have a period of thirty (30) days thereafter to respond in writing to the preceding clause Company’s findings, whereupon the Company shall not be applicable conduct a reasonable and fair hearing with respect the Employee and any supporting witnesses and evidence for the Employee to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.reach a final determination;
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due Employee is discharged by the Company for “Cause”. As used in excess of $50,000,000; or this Agreement, the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates term “Cause” shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliatesmean:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 Employee’s final and unappealed conviction of the Tax Code (or Section 302 of ERISA for pleading guilty or “nolo contendere” to) any plan year felony or a waiver misdemeanor involving dishonesty or moral turpitude; provided, however, that prior to discharging Employee for Cause, the Company shall give a written statement of such standard findings to Employee setting forth specifically the grounds on which Cause is sought or granted with respect based, and Employee shall have a period of ten (10) days thereafter to such Plan under Section 412 of respond in writing to the Tax Code or Section 303 of ERISACompany’s findings; or
(ii) The willful and continued failure of Employee to substantially perform his duties with the Company (other than any such failure resulting from illness or disability) after written demand of no less than thirty (30) days for substantial performance is beingrequested by the Company, which demand specifically identifies the manner in which it is claimed Employee has not substantially performed his duties, or within (b) Employee is willfully and continuously engaged in material misconduct which has, or would reasonably be expected to have, a direct and material adverse monetary effect on the five years preceding Company. For purposes of this Section 5, no act or failure to act on Employee’s part shall be considered “willful” if done, or omitted to be done, by Employee in good faith and with reasonable belief that Employee’s action or omission was in, or not opposed to, the Closing Datebest interest of the Company. No termination shall be effected for “Cause” unless Employee has been provided with specific written information as to the acts or omissions which form the basis of the allegation of for “Cause”, and Employee has beenhad an opportunity to be heard, terminated or with counsel if he so desired, before the Company determines, by majority vote, in good faith, that Employee was guilty of conduct constituting for “Cause” as herein defined, specifying the particulars thereof in detail.
(d) Employee is discharged by Company “without Cause”, which the Company may do at any time, with at least thirty (30) days advance written notice, subject to the full performance of termination proceedings under the obligations of the Company to the Employee for Base Compensation and bonus payments pursuant to Section 4041(c) of ERISA5.2; or
(iiie) Employee voluntarily terminates his employment due to “Good Reason”, which shall require such Originator or mean a material default by the Company in the performance of any of its ERISA Affiliates obligations hereunder, which default remains uncured by the Company for a period of thirty (30) days following receipt of written notice thereof to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; Company from Employee or
(ivf) results in a liability to such Originator or Employee voluntarily terminates his employment without Good Reason, which Employee may do at any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effecttime with at least 30 days advance notice.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event”) shall occur and be continuing:
(a) Any Originator the Borrower shall fail (i) default in the payment of any amount required to make any payment be made under the terms of this Agreement and such failure continues unremedied for a period of three Business Days after the due date set forth herein for such payment, or deposit required hereunder when if no due and, for any such payment or deposit which date is not in respect of principalspecified, such failure continues for three a period of twenty (320) consecutive Business Days, or days after written request for such payment has been made; or
(b) the amount described in clause (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to of the definition of Availability shall exceed the amount described in clause (i) of the definition of Availability for more than three Business Days, or the aggregate amount of all Advances Outstanding in Alternative Currencies exceeds 105% of the aggregate Alternative Currency Sub-Limits, for more than five Business Days; or
(i) the Borrower shall fail to perform or observe in any material respect any other covenant or other agreement of the Borrower set forth in this paragraph (a)) under Agreement or any other Transaction Document to which it is a party and such failure shall continue for fifteen party, or (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (Iii) the date such Originator receives notice shall fail to perform or observe in any material respect any term, covenant or agreement of such breach from Buyer, the Agent or Originator set forth in any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party party, in each case when such failure continues unremedied for more than twenty (20) days after written notice thereof shall have been given by the Deal Agent or in any other document delivered pursuant thereto Secured Party to such Person; or
(d) any representation or warranty made or deemed made hereunder shall prove to have been be incorrect in any material respect as of the time when made the same shall have been made, and such incorrect representation or deemed made and, with respect to any such representation, warranty, certification warranty shall not have been eliminated or statement that was so incorrect and which can be cured, is not otherwise cured within ten a period of twenty (1020) days after written notice thereof shall have been given by the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Deal Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior Secured Party to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.Borrower; or
(e) An an Insolvency Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.the Borrower; or
(f) A Change of Control shall occur.a Servicer Termination Event occurs; or
(g) One any Change-in-Control of the Borrower or the Originator occurs; or
(h) the Borrower or the Originator fails to make any payment of any principal of or any interest on any debt or other obligations when due (after giving effect to any periods of grace) which is outstanding in a principal amount of more than $100,000 in the aggregate in the case of the Borrower or more than $5,000,000 in the aggregate in the case of the Originator, or any event or condition occurs that would permit acceleration of such debt or other obligations if such event or condition has not been waived; or
(i) the Deal Agent, as agent for the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(i) a final judgments judgment for the payment of money in an amount excess of $5,000,000 shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall not have either (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise) during the pendency of such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $50,000,0001,000,000 or $100,000, individually respectively, in settlement of any litigation; or
(k) the Borrower or the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or recession of or to the Credit and Collection Policy in whole or in part that could have a material adverse effect upon the aggregateLoans or interest of any Lender, shall be entered against without the prior written consent of the Deal Agent; or
(l) on any Originator day, either (i) the aggregate Hedge Notional Amount is less than the product of the Hedge Percentage on claims not covered by insurance such day and the Hedge Amount on that day, or as (ii) any Hedge Transaction fails to which meet the insurance carrier has denied its responsibility, requirements set forth in Section 5.2(a) and such judgment shall continue unsatisfied and in effect failure continues unremedied for sixty (60) a period of ten consecutive days without a stay of execution.days; or
(hm) The Internal Revenue Service shall file notice of a lien pursuant the Aggregate Net ▇▇▇▇ to Section 6323 of Market Amount exceeds $15,000,000 for two consecutive Determination Dates; or
(n) on any Determination Date, the Tax Code with regard to any of the Receivables, Collections and/or Related Security Rolling Three-Month Portfolio Yield does not equal or exceed Minimum Portfolio Yield and such lien failure continues for a period of 15 consecutive days; or
(o) the Rolling Three-Month Default Ratio shall continue until exceed 5.0%; or
(p) the earlier Rolling Three-Month Charged-Off Ratio shall exceed 2.5%; or
(q) any two of (i) seven (7) days after inception and ▇▇▇▇▇ ▇▇▇▇▇▇, (ii) knowledge ▇▇▇ ▇▇▇▇▇▇, and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be employed by any Secured Party of such lien, the Borrower or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of Originator in the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAcapacity as executive officers thereof; or
(iir) is being, the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the five years preceding meaning of the Closing Date1940 Act or any rules, has been, terminated regulations or orders issued by the subject of termination proceedings under Section 4041(c) of ERISASEC thereunder; or
(iiis) shall require such the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances and the Swingline Advances by the Borrower made by the Lenders, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any of its ERISA Affiliates to provide security under Section 401(a)(29) other person or 412 entity of the Tax Code 1940 Act or Section 306 or 307 of ERISAthe rules and regulations promulgated thereunder; or
(ivt) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(ju) An ERISA Event a change in any binding law or any rule or regulation having the force of law shall have occurred thatoccur, which would cause the legal conclusions made in the opinion true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; or
(v) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 12.0%; or
(w) the Servicer shall fail to deliver an amended and restated Credit and Collection Policy to the Deal Agent and each Lender Agent by December 31, 2005; then, and in any such event, the Deal Agent may, with the consent of the Required Lenders, when taken together with and shall, at the direction of the Required Lenders, by notice to the Borrower, declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and all Obligations owing by the Borrower under this Agreement shall be accelerated and become immediately due and payable; provided, that, in the event that the Termination Event described in Section 9.1(e) herein has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Upon any such declaration or automatic occurrence of the Termination Date, no Advances or Swingline Advances will be made, and the Deal Agent and the other Secured Parties shall have, in addition to all other ERISA Events that have occurred for rights and remedies under this Agreement or otherwise, all periods rights and are then outstandingremedies provided under the UCC of each applicable jurisdiction and other Applicable Laws, could reasonably including the right to sell the Collateral, which rights and remedies shall be expected cumulative. The aforementioned rights and remedies shall be without limitation, and shall be in addition to result in liability all other rights and remedies of the Performance Guarantor Deal Agent and the Secured Parties otherwise available under any provision of this Agreement by operation of law, at equity or any otherwise, each of its Subsidiaries in an aggregate amount in excess of $50,000,000which are expressly preserved.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Termination Events. The occurrence of any one or more (a) Each of the following events shall constitute a an "Termination Event":
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator the Borrower, the Seller or UAC in this Agreement, the Sale and Purchase Agreement I, the Sale and Purchase Agreement II, the Insurance Agreement, any Warehouse Transfer Agreement or in any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made andmade, which, in the case of a violation of a representation or warranty with respect to any such representationa Receivable under the Sale and Purchase Agreement I and the Sale and Purchase Agreement II, warranty, certification will not constitute a Termination Event if (i) the Borrower remains in compliance with the Net Asset Test or statement that was so incorrect and which can be cured, is not cured within ten (10ii) days after UAC or the earlier Seller indemnifies the Borrower by depositing into the Collection Account an amount equal to the lesser of (IA) the date such Originator receives notice of such breach from Buyerprincipal amount of, and accrued interest on, the Agent related Receivable or any Lender Group Agent and (IIB) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that amount necessary to bring the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.Net Asset Test into compliance;
(cii) Failure of any Originator the Borrower, the Seller or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the UAC shall default by any Originator in the performance of (A) any termpayment obligation under this Agreement, provision or condition contained in Sections 6.01Athe Sale and Purchase Agreement I, 6.05Athe Sale and Purchase Agreement II, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit any Warehouse Transfer Agreement or in any other Transaction Document or (B) any other covenant or undertaking under the Transaction Documents and any Warehouse Transfer Agreement which in the case of this clause (B) shall remain unremedied for five days;
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Borrower, the Seller or UAC in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such Indebtedness decree or order unstayed and in effect for a period of an Originator 60 consecutive days;
(iv) the consent by the Borrower, the Seller or UAC to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Borrower, the Seller or UAC of or relating to substantially all of its Affiliates shall be declared to be due and payable property; or required to be prepaid (other than the admission by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator Borrower, the Seller or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit UAC in writing of its inability to pay its debts generally as they become due, the filing by the Borrower, the Seller or shall make UAC of a general petition to take advantage of any applicable insolvency or reorganization statute, the making by the Borrower, the Seller or UAC of an assignment for the benefit of its creditors., or the voluntary suspension by the Borrower, the Seller or UAC of payment of its obligations;
(ev) An a Servicer Default shall have occurred or for any reason UAC is not the Servicer;
(vi) either of the Borrower, the Seller or the Servicer shall consolidate or merge with or into any other person whereby it is not the surviving entity;
(vii) there shall have occurred any material adverse change in the operations of the Borrower, the Seller or the Servicer since the Closing Date, or any other event shall have occurred which materially affects the Borrower's, the Seller's or the Servicer's ability to either collect the Receivables or to perform under the Transaction Documents;
(viii) the Liquidity Agent shall have given notice that an event of default has occurred and is continuing under its agreements with VFCC;
(ix) the Commercial Paper issued by VFCC shall not be rated at least "A-2" by S&P and at least "P-2" by ▇▇▇▇▇'▇;
(x) the Net Investment minus amounts on deposit in the Prefunding Account shall at any time exceed the Net Receivables Balance, or (ii) the Net Asset Test is not satisfied;
(xi) a Take-Out shall not occur at least once in any period of six consecutive calendar months, provided, however, no Termination Event will have occurred if the Net Investment has been zero at any time during the prior six months;
(xii) the Net Yield as of Bankruptcy any Determination Date is less than 2.00% during a Settlement Period in which the Net Investment is greater than zero each day of such Settlement Period;
(xiii) a draw is made under the Policy;
(xiv) an Insurer Default has occurred and is continuing;
(xv) the term of the Policy is not of the term required by VFCC (which term shall occur with respect be at least equal to the term of the latest maturing Receivable in the facility plus one year and one day);
(xvi) the sum of (A) the amount on deposit in the Reserve Account and (B) the amount available pursuant to any Originator Reserve Account Guaranty is less than the Required Reserve Account Amount for two consecutive Business Days;
(xvii) the Borrower shall fail to make any payment of any amount required to be made under the terms of this Agreement and such failure continues unremedied for a period of two Business Days after the due date set forth herein for such payment, or if no due date is specified, such failure continues for a period of ten days after written request for such payment has been made;
(xviii) the Deal Agent, as agent for the Secured Parties, shall fail for any reason to have a valid perfected first priority security interest in any of its Subsidiaries.
(f) A Change the Collateral free and clear of Control any Adverse Claim; provided, however, such failure shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without constitute a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard Termination Event only if it is materially adverse to any of the Receivables, Collections and/or Related Security Secured Parties;
(xix) failure of the Hedging Counterparty to make any payment under the Hedging Agreement when due and such lien shall continue until failure of the earlier of (i) seven (7) Borrower to replace the Hedging Counterparty within 30 days after inception and (ii) knowledge by any Secured Party of such lien, failure; and
(xx) the failure of the Borrower to replace the Hedging Counterparty within 45 days in the event the Hedging Counterparty no longer satisfies the Short-Term Rating Requirement or the PBGC Long-Term Rating Requirement. then, and in any such event, the Deal Agent shall impose a lien pursuant to Section 4068 of ERISA with regard to any at the written direction of the ReceivablesInsurer or the Required Investors with the consent of the Insurer or, Collections and/or Related Security.
(i) Any Plan if an Insurer Default has occurred, at the request of the Required Investors, by notice to the Borrower declare the Termination Date to have occurred, without demand, protest or future notice of any Originator or any kind, all of its respective ERISA Affiliates:
(i) which are hereby expressly waived by the Borrower, and the Net Investment and all other amounts owing by the Borrower under this Agreement shall fail to be funded accelerated and become payable in accordance with Section 4.06; provided, that in the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
event that Termination Event described in subsection (iii) herein has occurred, the Termination Date shall require such Originator automatically occur, without demand, protest or any notice of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 any kind, all of which are hereby expressly waived by the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectBorrower.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Loan and Security Agreement (Union Acceptance Corp)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event:”) shall occur (regardless of the reason therefor):
(a) Any Originator the Borrower shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, interest or (ii) to perform Fees hereunder or observe under any covenant contained in Section 4.2 (other than Sections 4.2(a) Related Document and 4.2(c)) the same shall remain unremedied for one (1) Business Day or more or (iiiii) to perform make payment of any other monetary Borrower Obligation when due and payable and the same shall remain unremedied for one (1) Business Day or more after notice thereof from the Administrative Agent; or
(b) the Borrower, any Originator or the Servicer shall fail or neglect to perform, keep or observe any covenant or agreement other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 8.01) and the same shall remain unremedied for two (a)2) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known the Borrower becoming aware of such breach.breach and the Borrower’s receipt of notice thereof from the Administrative Agent; or
(bc) Any representation(i) an Originator, warrantythe Member, certification the Borrower, the Parent, the Servicer or statement made by any Subsidiary of any Originator or the Servicer shall fail to make any payment with respect to any of its Debts which, except with respect to the Borrower, is in this Agreementan aggregate principal amount in excess of $20,000,000 (other than Borrower Obligations) when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) a default or breach or other Transaction Document occurrence shall occur under any agreement, document or instrument to which it an Originator, the Member, the Borrower, the Parent, the Servicer or any Subsidiary of any Originator or the Servicer is a party or in any by which it or its property is bound (other document delivered pursuant thereto shall prove than a Related Document) which relates to have been incorrect in any material respect when made or deemed made anda Debt which, except with respect to the Borrower, is in an aggregate principal amount in excess of $20,000,000, which event has not been waived or shall remain unremedied within the applicable grace period with respect thereto, and the effect of such default, breach or occurrence is to cause or to permit the holder or holders then to cause such Debt to become or be declared due prior to their stated maturity; or
(d) a case or proceeding shall have been commenced against the Borrower, the Member, any Originator, the Parent, the Servicer or any Subsidiary (other than an Immaterial Subsidiary) of any Originator or the Servicer seeking a decree or order in respect of any such representationPerson under the Bankruptcy Code or any other applicable federal, warrantystate or foreign bankruptcy or other similar law, certification (i) appointing a custodian, receiver, liquidator, assignee, trustee or statement that was sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so incorrect and which can be cured, long as the Borrower is not cured within ten (10) a debtor in any such case or proceedings, such case or proceeding continues for 60 days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent unless dismissed or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachdischarged; provided, however, that such 60-day period shall be deemed terminated immediately if (x) a decree or order approving or ordering any of the materiality threshold in the preceding clause shall not be applicable foregoing is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (d) or (y) any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.of the events described in Section 8.01(e) shall have occurred; or
(ce) Failure the Borrower, the Member, any Originator, the Parent, the Servicer or any Subsidiary (other than an Immaterial Subsidiary) of any Originator or the Servicer shall (i) file a petition seeking relief under the Bankruptcy Code or any of its Affiliates other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to pay any Indebtedness when due object in excess of $50,000,000; or a timely and appropriate manner to the default by any Originator in the performance institution of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of proceedings under the Senior Credit Agreement Bankruptcy Code or any such Indebtedness other applicable federal, state or foreign bankruptcy or similar law or to the filing of an Originator any petition thereunder or any to the appointment of its Affiliates shall be declared to be due and payable or required to be prepaid (other than taking possession by a regularly scheduled paymentcustodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) prior to the date for any such Person or for any substantial part of maturity thereof.
such Person’s assets, (diii) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general an assignment for the benefit of creditors.
, or (eiv) An Event take any corporate or limited liability company action in furtherance of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAforegoing; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (RBS Global Inc)
Termination Events. The occurrence This Agreement may be terminated and the obligations of the parties hereunder shall thereupon cease (except with respect to those obligations theretofore accrued or to which by the express provisions of this Agreement survive such termination) at any time during the term hereof as follows: Either party may terminate this Agreement upon thirty (30) days’ prior written notice served by such party upon the other party, which notice shall state such party’s intent to terminate this Agreement. A non-defaulting party may terminate this Agreement if any default occurs in the performance of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required obligation hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue default continues for fifteen (15) consecutive days (other than Section 4.2(c)after written notice from such non-defaulting party to the defaulting party, which termination shall be seven (7) days) after become effective as of the earlier of (I) the date such Originator receives notice expiration of such breach from Buyerfifteen (15) day period; provided however, if the default is of such a nature that it cannot be cured in such fifteen (15) day period, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a defaulting party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect deemed to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
be in default if it commences to cure the default within such fifteen (c15) Failure day period and thereafter diligently pursues such cure to completion. This Agreement may be terminated upon the occurrence of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement following events: (i) the filing by or any such Indebtedness against either party of an Originator involuntary petition in bankruptcy or any similar proceeding; (ii) the adjudication of its Affiliates shall be declared a party as bankrupt or insolvent; (iii) the appointment of a receiver or trustee to be due and payable take possession of all or required to be prepaid substantially all of the assets of a party; (other than by a regularly scheduled paymentiv) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment by a party for the benefit of creditors.
; or (ev) An Event of Bankruptcy shall occur with respect to any Originator other action taken or suffered by a party under state or federal insolvency or bankruptcy law, or any comparable law which is now or hereafter may be in effect. Upon the occurrence of any such event, the non-defaulting party may, at its Subsidiaries.
(f) A Change option, terminate this Agreement by written notice to the defaulting party, and upon the giving of Control such notice this Agreement and the term hereof shall occur.
(g) One or more final judgments for immediately terminate. This Agreement may be terminated immediately upon giving written notice to Manager if Manager, without the payment prior written consent of money in an amount in excess of $50,000,000, individually or in the aggregateOwner, shall be entered against any Originator on claims not covered by insurance assign, transfer or as otherwise alienate its rights and obligations hereunder or attempt to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to do any of the Receivables, Collections and/or Related Security and such lien shall continue until same in violation of Section 9.2 hereof. This Agreement may be terminated immediately upon the earlier giving of written notice by any party hereunder to the other party if (i) seven (7) days after inception the Property shall be damaged or destroyed to the extent of 25% or more by fire or other casualty and Owner elects not to restore or replace such property or (ii) knowledge by any Secured Party there shall be a condemnation or deed in lieu thereof of such lien, 10% or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any more of the Receivables, Collections and/or Related SecurityProperty.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Credit Agreement (Macerich Co)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due anddue, for (ii) to observe or perform any such payment or deposit which is not covenant set forth in respect of principal, Section 4.2 and such failure continues shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day Days or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause clauses (i) and (ii) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen five (155) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any material representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(c) Failure of any Originator or any of its Affiliates respective Subsidiaries to pay any Indebtedness when due due, which individually or together with other such Indebtedness as to which any such failures exists has an aggregate outstanding principal amount in excess of $50,000,00015,000,000 (hereinafter, "Material Indebtedness"); or the default by any Originator or any of its respective Subsidiaries in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Material Indebtedness was created or is governed, 6.05Athe effect of which is to cause, 6.06Aor to permit the holder or holders of such Material Indebtedness to cause, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement such Material Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of an any Originator or any of its Affiliates respective Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(di) Any Originator or any of its respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator ; or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, proceeding shall be entered instituted by or against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail Subsidiaries seeking to be funded in accordance with adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the minimum funding standard required by Section 412 entry of an order for relief or the Tax Code appointment of a receiver, trustee or Section 302 other similar official for it or any substantial part of ERISA for any plan year its property or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such any Originator or any of its ERISA Affiliates respective Subsidiaries shall take any corporate action to provide security under Section 401(a)(29) or 412 authorize any of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, actions set forth in the opinion foregoing clause (i) of this subsection (d). For the Required Lenderspurposes of this Section 6.1(d), when taken together with all other ERISA Events that have occurred for all periods "Subsidiary" shall exclude a Subsidiary which (i) is not engaged in any business activity, (ii) has no Subsidiaries engaged in any business activity and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount (iii) has no Indebtedness outstanding in excess of $50,000,00010,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Such Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues shall continue for three (3) consecutive Business Days, or .
(iib) Such Originator shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachconsecutive Business Days.
(bc) Any representation, warranty, certification or statement made by any such Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to made; PROVIDED THAT any such representation, warranty, misrepresentation or certification or statement that was so incorrect and for which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause Buyer has actually received a Sale Price Credit shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectconstitute a Termination Event hereunder.
(cd) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,0002,500,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Indebtedness was created or is governed, 6.05Athe effect of which is to cause, 6.06Aor to permit the holder or holders of such Indebtedness to cause, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of an any Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(di) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
; or (eii) An Event any proceeding shall be instituted by or against such Originator or any of Bankruptcy shall occur with respect its Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) any Originator or any of its SubsidiariesSubsidiaries shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,0002,500,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together occur with all other ERISA Events that have occurred for all periods and are then outstanding, respect to a Pension Plan or Multiemployer Plan which his resulted or could reasonably be expected to result in liability of any Originator under Title IV of ERISA to such Pension Plan, such Multiemployer Plan or the Performance Guarantor or any of its Subsidiaries PBGC in an aggregate amount in excess of $50,000,0001,000,000; (ii) the aggregate amount of Unfunded-Pension Liability among all Pension Plans at any time exceeds $1,000,000; or (iii) any Originator or any ERISA Affiliate shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $1,000,000.
(j) Bank Agent shall deliver a Receivables Termination Notice under and as defined in the Intercreditor Agreement.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any an Insolvency Event with respect to the Transferor, the Servicer, ▇▇▇▇▇ (whether or not ▇▇▇▇▇ shall then be the Servicer), any Other TMUS Originator or the Guarantor shall fail have occurred;
(b) default in the payment of any Yield owing to any Funding Agent or Owner pursuant to Section 2.8 of this Agreement when the same becomes due and payable and such default shall continue for a period of five (5) Business Days;
(c) default in the payment of any outstanding Net Investment on the Final Payment Date, if and to the extent not previously paid;
(d) default in the performance or observance of (i) to make any payment covenant or deposit required hereunder when due andagreement of the Transferor made in this Agreement for the benefit of the Administrative Agent, for any such payment the Funding Agents or deposit the Owners (other than a covenant or agreement, a default in the performance or observance of which is not elsewhere in respect of principal, such failure continues for three (3) consecutive Business Daysthis Section 7.1 specifically dealt with), or (ii) to perform any representation or observe any covenant contained warranty of the Transferor made in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) this Agreement for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) the benefit of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from BuyerAdministrative Agent, the Agent Funding Agents or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove Owners proving to have been incorrect in any material respect as of the time when made the same shall have been made, which default or deemed made andinaccuracy, with respect to any such representationas applicable, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after has an Adverse Effect on the earlier of (I) the date such Originator receives notice of such breach from BuyerAdministrative Agent, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; Funding Agents or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due Owners and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect continues unremedied for sixty (60) consecutive days without after the date on which written notice of such failure or inaccuracy, shall have been given in writing to an Authorized Officer of the Transferor by the Administrative Agent or the Funding Agents;
(e) failure on the part of ▇▇▇▇▇, any Other TMUS Originator, the Transferor or the Servicer to make any payment, transfer or deposit required by the terms of this Agreement, the Conveyancing Agreement or the Sale Agreement on or before the date such payment, transfer or deposit is required to be made herein or therein and such failure shall continue for a stay period of execution.five (5) Business Days after written notice to an Authorized Officer of ▇▇▇▇▇, the Servicer or the Transferor, or actual knowledge by an Authorized Officer of ▇▇▇▇▇, the Servicer or the Transferor;
(f) the Transferor is required to register as an investment company under the Investment Company Act;
(g) a breach of any covenant of the Transferor or, ▇▇▇▇▇ or any Other TMUS Originator in this Agreement, the Conveyancing Agreement or the Sale Agreement, as applicable, which breach (i) has an Adverse Effect on the interest of any Funding Agent or any Owner and (ii) continues for a period of thirty (30) days after the date on which written notice of such breach, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of the Transferor or ▇▇▇▇▇, ▇▇▇▇▇ or, if applicable, the applicable Other TMUS Originator, as applicable, or after discovery of such breach, requiring the same to be remedied, by an Authorized Officer of the Transferor or ▇▇▇▇▇, ▇▇▇▇▇ or, if applicable, the applicable Other TMUS Originator, as applicable;
(h) The Internal Revenue Service shall file notice as of a lien pursuant to Section 6323 any date of the Tax Code with regard to any of the Receivablesdetermination, Collections and/or Related Security an Asset Base Deficiency exists, and such lien shall continue until the earlier condition continues unremedied for a period of sixty (i60) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.consecutive days;
(i) Any Plan all of any Originator or any the following conditions shall have occurred: (A) a Termination Notice shall have been delivered to the Servicer by the Administrative Agent pursuant to Section 6.6(a) of its respective ERISA Affiliates:this Agreement, and (B) a Successor Servicer shall not have been appointed and assumed the servicing of the Transferred Receivables pursuant to a servicing agreement reasonably acceptable to the Required Owners by the date which is sixty (60) days after the date on which such Servicer Default initially occurred;
(ij) the Administrative Agent (for the benefit of the Owners) shall fail to be funded have a first priority perfected security interest in accordance a material portion of the Transferred Assets. For the avoidance of doubt, the five (5) Business Day grace period provided for in the Termination Events described in paragraphs (b) and (d) above shall run contemporaneously with the minimum funding standard required by Section 412 comparable five (5) Business Day grace period relating to the comparable covenant or obligation of the Tax Code Transferor or Section 302 the Servicer, as applicable, to pay, transfer or deposit funds in this Agreement, the Conveyancing Agreement or the Sale Agreement. The Transferor shall deliver to the Administrative Agent, promptly, but in any event within five (5) days after the occurrence of ERISA for any plan year or a waiver Termination Event, written notice in the form of an Officer’s Certificate of the Transferor of such standard Termination Event, its status and what action the Transferor is sought taking or granted proposes to take with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectthereto.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each a “Termination Event”) shall occur:
(a) Any SPV Entity, any Originator or any Servicer shall fail (i) to make when due any payment or deposit required hereunder when due andto be made by it under this Agreement or any other Transaction Document, and such failure, shall continue unremedied for any such payment or deposit which is not in respect of principal, such failure continues for three two (32) consecutive Business Days;
(b) any representation or warranty made or deemed made by any SPV Entity, any Originator or any Servicer (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)their respective officers) under or in connection with this Agreement or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows information or should have known of such breach.
(b) Any representation, warranty, certification or statement made report delivered by any SPV Entity, any Originator in or any Servicer pursuant to this Agreement, Agreement or any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made andor delivered, with respect to any and such incorrect or untrue 742583266 14453710 representation, warranty, certification information or statement that was so incorrect and which can be curedreport, is not cured within ten solely to the extent capable of cure, shall continue unremedied for thirty (1030) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.days;
(c) Failure of any SPV Entity, any Originator or any of its Affiliates Servicer shall fail to pay any Indebtedness when due in excess of $50,000,000; perform or the default by any Originator in the performance of observe any term, provision covenant or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit agreement under this Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid other Transaction Document (other than by any such failure which would constitute a regularly scheduled payment) prior Termination Event under another clause set forth in this definition of “Termination Event”), and such failure, solely to the date extent capable of maturity thereof.cure, shall continue unremedied for thirty (30) days;
(d) Any this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Sold Assets or Pledged Collateral, free and clear of any Adverse Claim;
(e) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any SPV Entity, any Originator or any Servicer or their respective debts, or of a substantial part of their respective assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for any SPV Entity, any Originator or any Servicer or for a substantial part of their respective assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(f) any SPV Entity, any Originator or any Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in clause (e) of this Section 9.01, (iii) apply for or consent to the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its Subsidiaries shall generally not pay its debts as assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such debts become due proceeding or shall admit in writing its inability to pay its debts generally or shall (v) make a general assignment for the benefit of creditors.
, or the board of managers (eor similar governing body) An Event of Bankruptcy shall occur with respect to any SPV Entity, any Originator or any Servicer (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of its Subsidiaries.
the actions referred to above in this clause (f) A Change or clause (e) of Control shall occur.this Section 9.01;
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, a Capital Coverage Deficit shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibilityoccur, and such judgment shall continue unsatisfied and in effect for sixty not have been cured within three (603) consecutive days without a stay Business Days following any SPV Entity’s or any Servicer’s actual knowledge or receipt of execution.notice thereof;
(h) The any Seller, any Originator or any Servicer fails to make any payment (whether of principal or interest) in respect of any Material Indebtedness when and as the same shall become due and payable, after giving effect to any period of grace specified for such payment in the agreement or instrument governing such Material Indebtedness;
(i) any event or condition exists under any Material Indebtedness of the any SPV Entity, any Originator or any Servicer that causes such Material Indebtedness to become due prior to its scheduled maturity or any event or condition exists and continues without waiver or remedy for a period of 30 days that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any such Material 742583266 14453710 Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that no Termination Event shall arise under this clause (i) due to (i) any secured Material Indebtedness becoming due solely as a result of the voluntary sale or transfer of the assets securing such Material Indebtedness or (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof, in each case, so long as such Material Indebtedness is paid or otherwise satisfied as a result thereof within two Business Days of when due;
(j) any of the following shall occur:
(A) the average Default Ratios for any three consecutive Fiscal Months exceeds 6.00%;
(B) the average Delinquency Ratios for any three consecutive Fiscal Months exceeds 20.00%;
(C) the average Dilution Ratios for any three consecutive Fiscal Months exceeds 6.00%; or
(D) the Days’ Sales Outstanding exceeds 80 days;
(k) any SPV Entity shall be required to register as an “investment company” within the meaning of the Investment Company Act;
(l) any SPV Entity or any Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect (except to the extent resulting from an act or omission of any Purchaser Party or any of their respective Affiliates), or any of the any SPV Entity, any Originator or any Servicer (or any of their respective Affiliates) shall so state in writing;
(n) a Change in Control shall occur;
(o) Any Servicer shall resign as Servicer other than in accordance with Section 8.01(c);
(p) Any SPV Entity (or, in the case of the Limited Partnership, the general partner thereof) shall fail at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Manager) to have an Independent Manager who satisfies each requirement and qualification specified in this Agreement’s definition of “Independent Manager”;
(q) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of any SPV Entity, any Originator or any Servicer, or (ii) the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA, Section 303(k) of ERISA, or 430(k) of the Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan assets of any Originator SPV Entity or any of its respective ERISA Affiliates:;
(r) (i) shall fail the occurrence of a Reportable Event; (ii) the adoption of an amendment to be funded a Pension Plan that would require the provision of security pursuant to 742583266 14453710 Section 401(a)(29) of the Code or Section 307 of ERISA; (iii) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in accordance with Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard required by under Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject withdrawal or partial withdrawal of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator any SPV Entity or any of its ERISA Affiliates to provide security under Section 401(a)(29from any Multiemployer Plan; (vi) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator receipt by any SPV Entity or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any SPV Entity or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that would have a Material Adverse Effect.
Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA; (jviii) An the occurrence of a prohibited transaction with respect to the Seller or any of its ERISA Event shall have occurred thatAffiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or condition with respect to a Pension Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), that either individually or in the opinion of the Required Lendersaggregate, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could would reasonably be expected to result in liability a Material Adverse Effect;
(s) a Purchase and Sale Termination Event shall occur under any Purchase and Sale Agreement with respect to all applicable remaining Originators; or
(t) one or more judgments or decrees shall be entered against any SPV Entity, any Originator, or any Servicer, or any Subsidiary of any of the Performance foregoing involving in the aggregate a liability (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days, and the aggregate amount of all such judgments equals or exceeds $50,000,000 (or solely with respect to any SPV Entity, $15,325); then, and in any such event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the Seller (x) declare the Maturity Date to have occurred (in which case the Maturity Date shall be deemed to have occurred), and (y) declare the Aggregate Capital and all other non-contingent Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) or (f) of this Section 9.01 with respect to the Seller, the Maturity Date shall occur and the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC, PPSA and under other Applicable Law, which rights and remedies shall be cumulative. Without limiting the foregoing, the Administrative Agent may obtain from any court of competent jurisdiction an order for the appointment of an interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or of any or all of its Pledged Collateral and, by instrument in writing appoint one or more interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or any or all of its Subsidiaries Pledged Collateral with such rights, powers and authority as may be provided for in an aggregate amount the instrument of appointment or any supplemental instrument, and remove and replace any such interim receiver, receiver, manager or receiver and manager from time to time. To the extent permitted by Applicable Law, any such interim receiver, receiver, manager or receiver and manager appointed by the Administrative Agent shall (for purposes relating to responsibility for 742583266 14453710 acts or omissions) be considered to be the agent of the Canadian Guarantor and not of the Administrative Agent or any of the other Secured Parties. Any proceeds from liquidation of the Sold Assets and Pledged Collateral shall be applied in excess the order of $50,000,000priority set forth in Section 3.01.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event:”) shall occur (regardless of the reason therefor):
(a) Any Originator the Seller shall fail (i) to make any payment or deposit required hereunder of any monetary Seller Obligation when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) payable and the same shall remain unremedied for one (1) Business Day or more; or
(iiib) the Seller, any Significant Originator, any Significant Originator Group, any Transferor, BMPI, the Parent or the Servicer shall fail or neglect to perform perform, keep or observe any covenant or agreement other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 8.01) and the same shall remain unremedied for ten (a)10) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known the Seller becoming aware of such breach.breach and the Seller’s receipt of written notice thereof; or
(bi) Any representation, warranty, certification or statement made by any Originator in this AgreementSignificant Originator, any Significant Originator Group, the Seller, any Transferor, BMPI or the Parent shall fail to make any principal or interest payment with respect to any of its Debts which is in an aggregate principal amount in excess of $100,000,000, when and as the same shall become due and payable (after giving effect to an applicable grace period), which failure results in such Debt becoming due prior to its scheduled maturity or enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Debt or any trustee or agent on its or their behalf to cause such Debt to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or that is a failure to pay such Debt at its maturity; or (ii) a default or breach or other Transaction Document occurrence shall occur under any agreement, document or instrument to which it any Significant Originator, any Significant Originator Group, the Seller, any Transferor or the Parent is a party or by which it or its property is bound (other than a Related Document) which relates to a Debt which is in an aggregate principal amount in excess of $100,000,000, that results in such Debt becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Debt or any trustee or agent on its or their behalf to cause such Debt to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that clause (ii) shall not apply to secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Debt if such sale or transfer is otherwise permitted hereunder; or
(d) a case or proceeding shall have been commenced against any Originator, any Transferor, the Seller, BMPI or the Parent seeking a decree or order in respect of any such Person under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so long as the Seller is not a debtor in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made such case or deemed made andproceedings, with respect to any such representation, warranty, certification case or statement that was so incorrect and which can be cured, is not cured within ten (10) proceeding continues for 60 days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent unless dismissed or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachdischarged; provided, however, that the materiality threshold in the preceding clause such 60-day period shall not be applicable deemed terminated immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to any representation, warranty, certification a case or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due proceeding described in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
this subsection (d) Any Originator or (y) any of the events described in Section 8.01(e) shall have occurred; or
(e) any Originator, the Seller, the Parent, BMPI or any Transferor shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of its Subsidiaries shall generally not pay its debts as any proceedings under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or similar law or to the filing of any petition thereunder or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such debts become due Person or shall admit in writing its inability to pay its debts generally or shall for any substantial part of such Person’s assets, (iii) make a general an assignment for the benefit of creditors.
, or (eiv) An Event take any corporate or limited liability company, as applicable, action in furtherance of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAforegoing; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Univision Holdings, Inc.)
Termination Events. 14 The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator The Parent shall fail (i) to make any payment or deposit required hereunder when due anddue, which failure shall continue for any such payment or deposit which is not in respect of principal, such failure continues for three two (32) consecutive Business Days, days or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause CLAUSE (i) of this paragraph PARAGRAPH (a)) under or PARAGRAPH b) or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) [Reserved].
(c) Any representation, warranty, certification or statement made by any Originator the Parent in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(cd) Failure of any Originator or any of its Affiliates the Parent to pay any Material Indebtedness when due in excess of $50,000,000due; or the default by Parent at any Originator time has less than $50,000,000 in the performance cash, or less than $50,000,000 available to be drawn under committed lines of credit; or any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A Material Indebtedness of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates Parent shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur have occurred and remain continuing with respect to any Originator the Parent or any of its Subsidiaries.
(f) The Parent shall become an "investment company" within the meaning of the Investment Company Act of 1940 and the rules and regulations thereunder;
(g) A Change of Control shall occur.;
(gh) One or more final judgments for the payment of money in an amount in excess of $50,000,000, 20,000,000 individually or in the aggregate, shall be entered against the Parent or any Originator of its Subsidiaries on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(hi) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 Except such matters as described in EXHIBIT VII delivered on the Closing Date, any Plan of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator Parent or any of its respective ERISA Affiliates:
(iii) shall fail to be funded in accordance with the minimum funding standard required by applicable law, the terms of such Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under applicable law, the terms of such Plan or Section 412 of the Tax Code or Section 303 of ERISA; or
(iiiii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) applicable law or the terms of ERISAsuch Plan; or
(iiiiv) shall require such Originator the Parent or any of its ERISA Affiliates to provide security under applicable law, the terms of such Plan, Section 401(a)(29) 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(ivv) results in a liability to such Originator the Parent or any of its ERISA Affiliates under applicable law, the terms of such Plan, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, ; and there shall result from any such failure, waiver, termination or other event results in a liability to the PBGC or a with respect to such Plan that would could reasonably be expected to have a Material Adverse Effect.
(j) An ERISA Event [Reserved].
(k) The Termination Date shall have occurred that, in occur.
(l) Any event shall occur which (i) materially and adversely impairs the opinion ability of the Required LendersParent to originate Receivables of a credit quality that is at least equal to the credit quality of the Receivables contributed and absolutely assigned to the SPV on the date of this Agreement or (ii) has, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, or could reasonably be expected to result have, a Material Adverse Effect.
(m) The Parent shall make any material change in liability the policies as to the origination of Receivables in the Credit and Collection Policy without the prior written consent of the Performance Guarantor or Administrative Agent.
(n) The SPV, for any reason, does not have a valid, perfected, first-priority security interest in the Receivables and the Related Assets.
(o) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Purchased Assets and such lien shall not have been released within the earlier to occur of (i) seven (7) days or, (ii) the day on which the Administrative Agent or Blue Ridge becomes aware of such filing, or the PBGC shall, or shall indicate its Subsidiaries in an aggregate amount in excess intention to, file notice of $50,000,000a lien pursuant to Section 4068 of ERISA with regard to any of the Purchased Assets.
Appears in 1 contract
Sources: Receivables Contribution Agreement (Thomas & Betts Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen three (153) consecutive days (other than Section 4.2(c), which shall be seven (7) days) Business Days after the earlier of Originator (I) the date such Originator receives notice obtains Knowledge of such breach from Buyer, the Agent failure or any Lender Group Agent and (II) in the date an ordinary exercise of any such Authorized Officer Officer’s customary duties, reasonably should have obtained Knowledge of such Originator knows or should have known of such breachfailure.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and(or, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to case of any representation, warranty, certification or statement that itself contains any materiality threshold, including is subject to a Material Adverse EffectEffect or other materiality qualifier, such representation, warranty, certification or statement or warranty as stated shall prove to be incorrect) when made or deemed made.
(ci) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Significant Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
; or (eii) An Event of Bankruptcy any proceeding shall occur with respect to any be instituted by or against Originator or any of its SubsidiariesSignificant Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property and in the case of any such proceeding instituted against Originator (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of thirty (30) days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or (iii) Originator or any of its Significant Subsidiaries shall take any corporate or limited liability company action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(fd) A Change of Control shall occur.
(ge) One or more final judgments for the payment of money in an amount in excess of $50,000,00075,000,000, individually or in the aggregate, shall be entered against Originator and either (i) enforcement proceedings shall have been commenced by any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and creditor upon such judgment or order or (ii) there shall continue unsatisfied and in effect for sixty be any period of thirty (6030) consecutive days without during which a stay of execution.
(h) The Internal Revenue Service shall file notice enforcement of such judgment or order, by reason of a lien pursuant pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be a Termination Event under this Section 5.1(e) to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security extent that and such lien shall continue until the earlier of for so long as (i) seven (7) days after inception the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) knowledge such insurer, which shall be rated at least “A” by any Secured Party A.M. Best Company, has been notified of, and has not declined the claim made for payment of, the amount of such lien, judgment or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Securityorder.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event”:
(a) Any Originator shall fail (i) to make any payment representation or deposit required hereunder when due and, for any such payment warranty made or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement deemed made by any Originator in this Agreement, any other Transaction Document to which it is a party Seller under or in any other document delivered pursuant thereto connection with this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made andor delivered, with respect or the failure of a Seller to perform or observe any such representation, warranty, certification covenant or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice agreement of such breach from Buyer, the Agent Seller under this Agreement and such failure shall continue for 5 Business Days after such Seller receives written notice or any Lender Group Agent and (II) the date an Authorized Officer possesses actual knowledge of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.failure;
(cb) Failure a Seller institutes or consents to the institution of any Originator proceeding under any Debtor Relief Law, or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of makes an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Seller and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to such Seller or to all or any material part of its property is instituted without the consent of such Seller and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding;
(c) any representation or warranty made or deemed made by the Buyer under or in connection with this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, or the failure of a Buyer to perform or observe any covenant or agreement of the Buyer under this Agreement and such failure shall continue for 5 Business Days after the Buyer receives written notice or possesses actual knowledge of such failure;
(d) a Seller provides the Buyer with at least 30 days’ written notice of its intention to withdraw from this Agreement; and
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, Buyer and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 each of the Tax Code with regard to any of the ReceivablesSellers mutually consent, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienin writing, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effecttermination of this Agreement.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Midcoast Energy Partners, L.P.)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event:”) shall occur (regardless of the reason therefor):
(a) Any Originator the Borrower shall fail (i) to make any payment or deposit required hereunder of any monetary Borrower Obligation when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) payable and the same shall remain unremedied for one (1) Business Day or more; or
(iiii) the Borrower shall fail to perform deliver a Daily Report, Weekly Report, Monthly Report or Borrowing Base Certificate as and when required hereunder and such failure shall remain unremedied for two (2) Business Days or more, (ii) any Originator shall fail or neglect to perform, keep or observe any covenant or agreement provision of Section 4.04 of the Sale Agreement or Article V of the Sale Agreement, (iii) the Borrower, any Originator or the Servicer shall fail or neglect to perform, keep or observe any covenant or other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 8.01) and the same shall remain unremedied for two (a)2) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known the Borrower becoming aware of such breach.breach and the Borrower’s receipt of notice thereof; or
(bc) Any representation(i) an Originator, warrantythe Borrower, certification the Parent or statement made by any Originator of the Parent’s other Subsidiaries shall fail to make any payment with respect to any of its Debts which, except with respect to the Borrower, is in this Agreementan aggregate principal amount exceeding $100,000,000 (other than 727159853 10435078 46 Borrower Obligations) when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) a default or breach or other Transaction Document occurrence shall occur and be continuing under any agreement, document or instrument to which it an Originator, the Borrower, the Parent or any of the Parent’s other Subsidiaries is a party or in any by which it or its property is bound (other document delivered pursuant thereto shall prove than a Related Document) which relates to have been incorrect in any material respect when made or deemed made anda Debt which, except with respect to any such representation, warranty, certification or statement that was so incorrect and which can be curedthe Borrower, is not cured in an aggregate principal amount exceeding $100,000,000, which event shall remain unremedied within ten (10) days after the earlier of (I) applicable grace period with respect thereto, and the date such Originator receives notice effect of such default, breach from Buyer, or occurrence is to cause or to permit the Agent holder or any Lender Group Agent and (II) the date an Authorized Officer of holders then to cause such Originator knows Debt to become or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.their stated maturity; or
(d) Any Originator a case or proceeding shall have been commenced against the Borrower, any Originator, the Parent or any of its the Parent’s other Subsidiaries seeking a decree or order in respect of any such Person under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so long as the Borrower is not a debtor in any such case or proceedings, such case or proceeding continues for 60 days unless dismissed or discharged; provided that such 60-day period shall be deemed terminated immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (d) or (y) any of the events described in Section 8.01(e) shall have occurred; or
(e) the Borrower, any Originator, the Parent or any of the Parent’s other Subsidiaries shall (i) file a petition seeking relief under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of any proceedings under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or similar law or to the filing of any petition thereunder or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing; or
(f) any Originator, the Borrower, Parent, or the Servicer (i) generally does not pay its debts as such debts become due or shall admit admits in writing its inability to to, or is generally unable to, pay its debts generally as such debts become due or shall make a general assignment for the benefit of creditors.
(eii) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.is not Solvent; or
(g) One a final judgment or more final judgments for the payment of money in an amount excess of $100,000,000 in the aggregate (net of insurance proceeds) at any time outstanding shall be rendered against any Originator, the Parent or any Subsidiary of the Parent (other than the Borrower) and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) the same shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or
(h) a judgment or order for the payment of money in excess of $50,000,0002,500 shall be rendered against the Borrower; or 727159853 10435078 47
(i) (i) any information contained in any Borrowing Base Certificate or any Borrowing Request is untrue or incorrect in any respect, individually or (ii) any representation or warranty of any Originator or the Borrower herein or in any other Related Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate or any Borrowing Request) made or delivered by or on behalf of such Originator or the aggregate, shall be entered against Borrower to any Originator on claims not covered by insurance Affected Party hereto or thereto is untrue or incorrect in any material respect as to which of the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.date when made or deemed made; or
(hj) The Internal Revenue Service any Governmental Authority (including the IRS or the PBGC) shall file notice of a lien pursuant Lien with respect to Section 6323 a Pension Plan of any Originator, the Parent or any of their respective ERISA Affiliates with regard to any assets of any Originator, the Parent or any of their respective ERISA Affiliates (other than a Lien (i) limited by its terms to assets other than Transferred Receivables and (ii) not materially adversely affecting the financial condition of such Originator, the Parent or any such ERISA Affiliate or the ability of the Tax Code Servicer to perform its duties hereunder or under the Related Documents); or
(k) any Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until assets of the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBorrower, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted contribution failure occurs with respect to such any Pension Plan under Section 412 of the Tax Code Borrower or Section 303 any ERISA Affiliate of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings Borrower sufficient to give rise to a lien under Section 4041(csection 303(k) of ERISA; or
(iiil) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29(1) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred thatany event which, in the opinion reasonable judgment of the Required Administrative Agent (acting at the direction of the Requisite Lenders), when materially and adversely impairs (i) the ability of the Originators (taken together with all as a whole) to originate Receivables (other ERISA Events than Excluded Receivables) of a credit quality which are at least of the credit quality of the Receivables (other than Excluded Receivables) as of the 2016 Effective Date, (ii) the financial condition or operations of the Originators (taken as a whole), the Borrower or the Parent, or (iii) the collectability of Receivables (other than Excluded Receivables), or (2) the Administrative Agent shall have determined (and so notified the Borrower) that have occurred for all periods and are then outstanding, any event or condition that has had or could reasonably be expected to have or result in liability a Material Adverse Effect has occurred; or
(i) a default or breach shall occur under any provision of the Performance Guarantor Sale Agreement and after the passing of any applicable grace period the same shall remain unremedied for two (2) Business Days or more following the earlier to occur of an Authorized Officer of the Borrower becoming aware of such breach and the Borrower’s receipt of notice thereof, or (ii) the Sale Agreement shall for any reason cease to evidence the transfer to the Borrower of the legal and equitable title to, and ownership of, the Transferred Receivables; or
(n) except as otherwise expressly provided herein, any Account Agreement shall have been modified, amended or terminated without the prior written consent of the Administrative Agent and the Requisite Lenders; or
(o) an Event of Servicer Termination shall have occurred; or
(A) the Borrower shall cease to hold valid and properly perfected title to and sole record and beneficial ownership in the Transferred Receivables and the other Borrower 727159853 10435078 48 Collateral or (B) the Administrative Agent (on behalf of the Lenders) shall cease to hold a first priority, perfected Lien in the Transferred Receivables or any of the Borrower Collateral; or
(q) a Change of Control shall have occurred; or
(r) the Borrower shall amend its Subsidiaries certificate of incorporation or bylaws without the express prior written consent of the Requisite Lenders and the Administrative Agent; or
(s) the Borrower shall have received an Election Notice pursuant to Section 2.01(d) of the Sale Agreement; or
(t) (i) the Default Trigger Ratio shall exceed 2.25%; (ii) the Delinquency Trigger Ratio shall exceed 3.25%; (iii) the Dilution Trigger Ratio shall exceed 5.75%; or (iv) the Receivables Collection Turnover Trigger shall exceed 47.5 days; or
(u) the Administrative Agent shall have received a “Receivables Termination Notice” or an “Enforcement Notice” in an aggregate amount each case, under (and as defined in) the applicable Intercreditor Agreement;
(v) any material provision of any Related Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms (or any Originator or the Borrower shall challenge the enforceability of any Related Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Related Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(w) institution of any steps by the Borrower or any other Person to terminate a Pension Plan of the Borrower or any ERISA Affiliate of the Borrower if as a result of such termination the Borrower could be required to make a contribution to such Pension Plan, or could incur a liability or obligation to such Pension Plan, in excess of $50,000,0001,500,000; or
(x) the Borrower shall fail to obtain an Explicit Rating within the applicable time frame specified in Section 2.11 (giving effect to any additional time period applicable under Section 2.11); or
(y) a Funding Excess exists at any time and the Borrower has not repaid the amount of such Funding Excess within one (1) Business Day in accordance with Section 2.08; then, and in any such event, the Administrative Agent, may, with the consent of the Requisite Lenders, and shall, at the request of the Requisite Lenders, by notice to the Borrower, declare the Facility Termination Date to have occurred without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided that the Facility Termination Date shall automatically occur upon the occurrence of any of the Termination Events described in Section 8.01(d) or (e), in each case without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Upon the occurrence of the Facility Termination Date, all Borrower Obligations shall automatically be and become due and payable in full, without any action to be taken on the part of any Person. In addition, if any Event of Servicer Termination shall have occurred, then the Administrative Agent may, and shall, at the 727159853 10435078 49 request of the Requisite Lenders, by delivery of a Servicer Termination Notice to Buyer and the Servicer, terminate the servicing responsibilities of the Servicer under the Sale Agreement in accordance with the terms thereof.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a "Termination Event:") shall occur (regardless of the reason therefor):
(a) Any Originator shall fail (i) the Seller shall fail to make any payment or deposit required hereunder of any Seller Secured Obligation when due and payable and the same shall remain unremedied for two Business Days or more, (ii) the Seller shall fail to deliver the Investment Base Certificate as required pursuant to Section 2.03 or the reports as and when required in clauses (a), (b), (c) or (d) of Annex 5.02
(a) and, for any such payment or deposit which is not in respect of principaleach case, such failure continues shall remain unremedied for three two (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (12) Business Day Days or more, or (iii) the Seller or SPC shall fail or neglect to perform perform, keep or observe any covenant other provision of this Agreement or agreement the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 9.01) and the same shall remain unremedied for five (a)5) under any other Transaction Document Business Days or more after written notice thereof shall have been given by the Administrative Agent to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Seller; or
(b) Any representationa default or breach (after giving effect to applicable cure periods, warrantyif any) shall occur under any other agreement, certification document or statement made by any Originator in this Agreementinstrument to which the Parent Guarantor, any Originator, or any other Transaction Document to which it Subsidiary of the Parent Guarantor is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to by which any such representationPerson or its property is bound, warranty, certification and such default or statement that was so incorrect and which can be cured, is not cured within ten breach (10i) days after involves the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or failure to make any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold payment when due in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator Debt to GE Capital or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any termAffiliates, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by permits any Secured Party holder of such lien, Debt or a trustee or agent under the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator Credit Facilities or any foreign credit facility of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Parent Guarantor or any of its Subsidiaries in an aggregate amount to cause such Debt or a portion thereof to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, or (iii) permits any holder of Debt or a portion thereof which is in excess of a principal amount of $50,000,000.5,000,000 in the aggregate to cause such Debt or a portion thereof to become due prior to its stated maturity or prior to its regularly scheduled dates of payment; in each case, regardless of whether such default is waived, or such right is exercised, by such holder, trustee or agent; or
Appears in 1 contract
Sources: Receivables Purchase and Servicing Agreement (K2 Inc)
Termination Events. The occurrence of If any one or more of the following events (“Termination Events”) shall constitute a Termination Eventoccur:
(a) Any Originator the Borrower or any other Transaction Party shall fail (i) to make when due any payment or deposit of principal required hereunder or any other Transaction Document or (ii) to make when due andany payment of interest, for any such payment fees or deposit which is not in respect of principal, other amounts required hereunder and such failure continues for three (3) consecutive Business Days, or ;
(iib) any Transaction Party shall fail to perform or observe any term, covenant contained or agreement (i) set forth in Article 6 hereunder, (ii) set forth in Section 4.2 5.01(e), (other than Sections 4.2(af) and 4.2(c)(g) or Section 5.02(a) and such failure shall remain unremedied for one five (15) Business Day Days following the earlier to occur of (A) written notice thereof by the Administrative Agent to the Servicer or the Borrower, as applicable, or (B) the Servicer’s or the Borrower’s actual knowledge of such failure or (iii) to perform or observe any covenant or agreement otherwise set forth in the Transaction Documents (other than as referred to in clause clauses (i) and (ii) of this paragraph (a)b) under any other Transaction Document to which it is a party or otherwise in this Article 7) and such failure shall continue remain unremedied for fifteen ten (1510) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days following the earlier to occur of (IA) written notice thereof by the Administrative Agent to the Servicer or the Borrower, as applicable, or (B) the date such Originator receives notice Servicer’s or the Borrower’s actual knowledge of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.failure;
(bc) Any any representation, warranty, certification or statement made by any Originator Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto hereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.made;
(d) Any Originator or (i) any of its Subsidiaries Transaction Party shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.; or any proceeding shall be instituted by or against such Transaction Party seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for a substantial part of its property (and in the case of an involuntary proceeding, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered), or (ii) any Transaction Party shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (d);
(e) An As at the end of any Calculation Period:
(i) the average of the Delinquency Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 3.50% at any time;
(ii) the average of the Dilution Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 12.00% at any time; or
(iii) the average of the Default Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 3.50% at any time;
(f) any Originator shall for any reason cease to transfer, or cease to have the legal capacity or otherwise be incapable of transferring, Receivables to the Borrower, as purchaser under the Sale Agreement, or any “Servicer Event of Bankruptcy Default” or “Potential Servicer Event of Default” shall occur under the Sale Agreement;
(g) a Change in Control shall occur;
(h) the Performance Undertaking shall cease to be effective (other than in accordance with respect its terms) or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any Originator proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder;
(i) one or more final judgments shall be entered against any Originator, the Performance Guarantor or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments subsidiaries for the payment of money in an the aggregate amount in excess of $50,000,00010,000,000 or more, individually or the equivalent thereof in the aggregateanother currency, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant execution or bond to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.secure appeal;
(j) An any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(k) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (k) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; provided, further, for the avoidance of doubt, the existence of any right or option of any holder of any convertible Indebtedness to convert any Indebtedness represented thereby into equity interests of the Company and/or any cash settlement (including in respect of fractional shares) in connection with such conversion or the conversion of such Indebtedness shall not constitute a Termination Event under this clause (k);
(l) [Reserved];
(m) an ERISA Event shall have occurred that, in the reasonable opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstandingoccurred, could reasonably be expected to result in liability a Material Adverse Effect;
(n) the security interest granted pursuant to Article 10 shall for any reason fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby (other than any immaterial portion of the Performance Guarantor Collateral), except as permitted by the terms of this Agreement, or this Agreement shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Transaction Document; provided that no Event of Default shall occur under this clause (n) as a result of any loss of perfection or priority caused by the failure of the Administrative Agent to file UCC continuation statements;
(o) any material provision of any of the Transaction Documents for any reason ceases to be valid, binding and enforceable in accordance with its Subsidiaries terms (or any Transaction Party shall challenge the enforceability of any of the Transaction Documents or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Transaction Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms);
(p) [Reserved];
(q) an Availability Shortfall exists at any time and the Borrower has not repaid or cash collateralized the amount of such Availability Shortfall within one Business Day of written notice in accordance with Section 2.08;
(r) Consolidated EBITDA of the Company and its subsidiaries for any four consecutive fiscal quarter period ending on the date set forth below is less than the amount set forth opposite such period: Four Consecutive Fiscal Quarter Period Ending Minimum Consolidated EBITDA September 30, 2011 $ 125,000,000 December 31, 2011 $ 125,000,000 March 31, 2012 $ 160,000,000 June 30, 2012 $ 160,000,000 September 30, 2012 $ 210,000,000 December 31, 2012 $ 250,000,000 March 31, 2013 $ 275,000,000 June 30, 2013 $ 325,000,000 September 30, 2013 $ 370,000,000 December 31, 2013 $ 415,000,000 March 31, 2014 $ 450,000,000 June 30, 2014 $ 475,000,000 September 30, 2014 $ 495,000,000 December 31, 2014 $ 495,000,000 (s) the aggregate amount of Capital Expenditures of the Company and its subsidiaries on a consolidated basis during any period set forth below exceeds the amount set forth opposite such period: Period Maximum Capital Expenditures For the two consecutive fiscal quarters ending December 31, 2011 $ 90,000,000 For the four consecutive fiscal quarters ending December 31, 2012 $ 200,000,000 For the four consecutive fiscal quarters ending December 31, 2013 $ 250,000,000 For the four consecutive fiscal quarters ending December 31, 2014 $ 355,000,000 ; provided that:
(i) the amount of “Maximum Capital Expenditures” set forth in the table above in respect of any “Period” in such table (a “Period”) shall be decreased by the aggregate amount of Indebtedness incurred by the Company or any subsidiary of the Company in reliance on Section 6.01(e) of the YRCW Amended Term Loan during such Period;
(ii) notwithstanding anything to the contrary contained above, to the extent that the aggregate amount of Capital Expenditures made by the Company and its subsidiaries (plus the aggregate amount of Indebtedness incurred as described in the foregoing clause (i)) in any Period that reduced the amount of Capital Expenditures that could be made in such Period pursuant to the table above (but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) is less than the maximum amount set forth in the table above, fifty percent (50%) of the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with such Rollover Amount deemed utilized first in such succeeding fiscal year); and
(iii) in addition to the Capital Expenditures permitted pursuant to the preceding paragraphs of this clause (s), the Company and its subsidiaries may make additional Capital Expenditures at any time in an aggregate amount not to exceed the portion, if any, of the Available Basket Amount (as defined in excess the YRCW Amended Term Loan) on the date of $50,000,000.such Capital Expenditure that the Company elects to apply to this clause (s), so long as no Termination Event has occurred and is continuing or would result therefrom;
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a "Termination Event:") shall occur (regardless of the reason therefor):
(a) Any Originator shall fail (i) the Borrower shall fail to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principalprincipal or interest when due and payable (including, such failure continues without limitation, payments required to be made in respect of a Funding Excess pursuant to the terms of Section 2.11 hereof) and the same shall remain unremedied for three five (35) consecutive Business DaysDays or more, or (ii) the Borrower shall fail to perform or observe make any covenant contained in Section 4.2 payment of any other monetary Borrower Obligation when due and payable and the same shall remain unremedied for five (other than Sections 4.2(a) and 4.2(c)) for one (15) Business Day Days or more after the earlier to occur of (iiix) the date on which a Responsible Officer of the Borrower obtains knowledge of such failure and (y) the date on which written notice of such failure is given to perform the Borrower by the Lender; or
(b) the Borrower shall fail or neglect to perform, keep or observe any covenant or agreement other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 9.01) and the same shall remain unremedied for thirty (a)30) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) or more after the earlier to occur of (Ix) the date on which a Responsible Officer of the Borrower obtains actual knowledge of such Originator receives failure and (y) the date on which written notice of such breach from Buyer, failure is given to the Agent or any Lender Group Agent and (II) Borrower by the date an Authorized Officer of such Originator knows or should have known of such breach.Lender; or
(bc) Any representation, warranty, certification any representation or statement warranty made by any Originator the Borrower in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Agreement shall prove to have been incorrect in any material respect when made or deemed made and, with respect and the same shall continue to any such representation, warranty, certification or statement that was so be incorrect and which can be cured, is not cured within ten for thirty (1030) days or more after the earlier to occur of (Ix) the date on which a Responsible Officer of the Borrower or the Servicer obtains actual knowledge of such Originator receives failure and (y) the date on which written notice of such breach from Buyer, failure is given to the Agent Borrower by the Lender; or
(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Borrower in an involuntary case under the Bankruptcy Code or any Lender Group Agent applicable bankruptcy, insolvency or other similar law now or hereafter in effect (the Bankruptcy
(A) an involuntary case is commenced against the Borrower under any Applicable Insolvency Law now or hereafter in effect, a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or over all or a substantial part of the property of the Borrower shall have been entered, an interim receiver, trustee or other custodian of the Borrower for all or a substantial part of the property of the Borrower is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any substantial part of the property of the Borrower, and (IIB) the date an Authorized Officer of such Originator knows any event referred to in clause (ii)(A) above continues for 60 days unless dismissed, bonded or should have known of such breachdischarged; provided, however, that such 60-day period shall be deemed terminated immediately upon the materiality threshold occurrence of any of the events referred to in this Section 9.01(d) other than those referred to in clause (ii)(A) above; and (iii) the preceding clause Borrower shall not be applicable at its request have a decree or an order for relief entered with respect to it or commence a voluntary case under any representationApplicable Insolvency Law, warrantyconsent to the entry of a decree or an order for relief in an involuntary case, certification or statement that itself contains to the conversion of an involuntary case to a voluntary case, under any materiality thresholdApplicable Insolvency Law, including Material Adverse Effect.
consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (civ) Failure the making by the Borrower of any Originator general assignment for the benefit of creditors; (v) the inability or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A failure of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared Borrower generally to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due due; or shall admit in writing its inability to pay its debts generally or shall make a general assignment for (vi) the benefit board of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 directors of the Tax Code with regard Borrower adopts any resolution or otherwise authorizes action to approve any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.foregoing;
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a be Termination EventEvents (“Termination Events”) hereunder:
(a) Any Originator shall fail (i) any failure on the part of the Seller or the Originator duly to make observe or perform in any payment material respect any covenants or deposit required hereunder when due and, for any such payment agreements of the Seller or deposit the Originator set forth in this Agreement or the other Transaction Documents to which the Seller or the Originator is not in respect of principal, such failure continues for three a party (3other than those specifically addressed below) consecutive Business Days, or (ii) to perform any breach by the Seller or observe the Originator of any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day representation or (iii) to perform warranty of the Seller or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) the Originator under any other Transaction Document to which it is a party which has a Material Adverse Effect on the Secured Parties and in the case of clauses (i) or (ii) continues unremedied for a period of 30 days (if such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) daysis capable of being cured) after the earlier to occur of (Ix) the date such Originator receives on which written notice of such breach from Buyer, failure requiring the same to be remedied shall have been given to the Seller or the Originator by the Administrative Agent or any Lender Group Purchaser Agent and (IIy) the date an Authorized Officer of such on which the Seller or the Originator knows or should have known of such breach.becomes aware thereof; or
(b) Any representation, warranty, certification the occurrence of an Insolvency Event relating to the Seller or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachOriginator; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due a Servicer Default occurs and payable or required to be prepaid is continuing (other than by a regularly scheduled paymentServicer Default described under Section 6.15(e), (i) prior or (j) the sole remedy for which shall be to replace MCG Capital as Servicer); or
(i) any Transaction Document, or any Lien granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Seller, the Depositor, the Originator or the Servicer,
(ii) the Seller, the Depositor, the Originator, the Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any Lien thereunder, or
(iii) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a first priority perfected security interest; or
(e) other than in accordance with Sections 5.1(h) or 5.4(f) hereof, the Originator, the Seller or the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the date Credit and Collection Policy in whole or in part that could be reasonably be expected to have a material adverse effect upon the Assets or interest therein of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment the Trustee, for the benefit of creditors.
(e) An Event the Secured Parties, without the prior written consent of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.the Administrative Agent and the Purchaser Agents; or
(f) A Change the Advances Outstanding on any day exceeds the lesser of Control shall occur.the Facility Amount and Maximum Availability and such condition continues unremedied for two Business Days or; or
(g) One the Seller fails to enter into a required Hedge Transaction pursuant to this Agreement, and such failure continues unremedied for five Business Days; or
(h) as of any Determination Date, the Average Pool Delinquency Ratio exceeds 4.0%; or
(i) as of any Determination Date, the Average Pool Charged-Off Ratio exceeds 2.0%; or
(j) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 7.5%; or
(k) as of any Determination Date, the Pool Yield does not equal or exceed the Minimum Pool Yield and the same continues unremedied to the following Determination Date; or
(l) on any day an Overcollateralization Shortfall exists and the same continues unremedied for two Business Days; or
(m) the Seller, the Depositor or the Originator shall be in payment default, after giving effect to any applicable grace or cure period, required by the terms of any agreement for borrowed money to which any such entity is a party for an amount exceeding $1,000,000 in the case of the Seller or the Depositor and $10,000,000 in the case of the Originator; or
(n) the rendering of one or more final judgments judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in an amount in excess of $50,000,00010,000,000, individually or in the aggregate, shall be entered against any Originator on claims the Originator, or $2,000,000 against the Seller, individually or in the aggregate, which is not fully covered by applicable insurance and the Originator or the Seller, as the case may be, shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to which be stayed during the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay pendency of execution.the appeal; or
(ho) The the Seller fails to pay the Aggregate Unpaids on or prior to the Legal Final Maturity Date; or
(p) the Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Seller or the Originator and such lien Lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within five Business Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 assets of the Tax Code Seller or Section 302 of ERISA for any plan year or a waiver of the Originator and such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISALien shall not have been released within five Business Days; or
(iiq) is beinga regulatory, tax or within accounting body has issued a final order that the five years preceding activities of the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISASeller contemplated hereby be terminated; or
(iiir) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 failure on the part of the Tax Code Seller or Section 306 the Originator to make any payment or 307 deposit (including without limitation with respect to Collections) required by the terms of ERISAany Transaction Document on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or
(ivs) results the Seller shall become required to register as an “investment company” within the meaning of the 40 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 40 Act; or
(t) the Seller amends the Trust Agreement without the prior written consent of the Administrative Agent;
(u) as of any date of determination, the Diversity Score of the Eligible Loans in the Asset Pool is (i) below 8 and is not increased to 8 or above within 60 days or (ii) is below 6 and is not increased to 8 or above within 30 days;
(v) as of any date of determination, the ▇▇▇▇▇’▇ Weighted Average Rating of the Eligible Loans in the Asset Pool is greater than 4300 and is not reduced below 4300 within (i) 30 days or (ii) 120 days in the event that the ▇▇▇▇▇’▇ Weighted Average Rating is above 4300 due to revisions by ▇▇▇▇▇’▇ in its “Caa1” rating assumption pursuant to clause (ii) of the definition of ▇▇▇▇▇’▇ Weighted Average Rating Factor; or
(w) as of any date of determination, the S&P CDO Evaluator Test is not satisfied and remains unsatisfied for a liability period of 60 days; provided, that, each of the Servicer and the Administrative Agent reserves the right during such 60 day period to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISArequest that S&P recalculate and reevaluate the key assumptions utilized in the S&P CDO Evaluator Test, and there shall result from any in the event the Asset Pool achieves an “A” rating by S&P at such failure, waiver, termination or other event a liability to time then the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA foregoing Termination Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000deemed cured.
Appears in 1 contract
Termination Events. The occurrence of any one or more Each of the following events or occurrences described in this Section 9.1 shall constitute a “Termination Event:” (each event which with notice or the passage of time or both would become a Termination Event being referred to herein as a “Potential Termination Event”):
(a) Any the Amortization Date shall have occurred;
(b) any Originator shall fail (i) to make when due any payment or deposit required hereunder when due and, for any to be made by such payment Originator under this Agreement or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Basic Document to which it is a party and such failure shall continue remain unremedied for fifteen two (152) consecutive days Business Days;
(c) any representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement or in any other than Section 4.2(c), Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the Buyer or the Servicer to the Agent shall be seven untrue or incorrect in any material respect when made and, if capable of correction, shall not be corrected within thirty (730) days) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Senior Officer of such Originator knows has knowledge thereof or should after written notice of such failure shall have known been given by the Agent to the Buyer and the Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any breach described above is cured in the manner provided in Section 4.5, or by the Originator’s making of an indemnification payment under Section 10.1 on account of such breach., in each case in accordance with this Agreement (and as and to the extent permitted under the RLSA), such breach shall not constitute a Termination Event;
(bd) Any representation, warranty, certification or statement made by any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, Agreement or any other Transaction Basic Document to which it is a party on its part to be performed or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any observed and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten continues unremedied for more than thirty (1030) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Senior Officer of such Originator knows has knowledge thereof or should have known after written notice of such breach; provided, however, that failure shall have been given by the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior Agent to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for Buyer and the benefit of creditors.Servicer;
(e) An any Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.Originator; or
(f) A Change the Buyer (and not the Servicer), upon the occurrence and during the continuation of Control a “Termination Event” under that certain Receivables Purchase and Sale Agreement, dated as of the Amendment Effective Date, among Volt Consulting Group Limited, Volt Europe Limited, Volt and the Buyer (as amended, restated, supplemented or otherwise modified from time to time, the “UK RPSA”), shall occur.
have declared the Purchase Facility (g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or as defined in the aggregate, shall be entered against any Originator on claims not covered by insurance or UK RPSA) terminated as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and provided in effect for sixty (60Section 9.2(a) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related SecurityUK RPSA.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator or Performance Guarantor shall fail to (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Daysdue, or (ii) to perform or observe deliver any covenant contained Purchase and Contribution Report when due, and, in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) either of this paragraph (a)) under any other Transaction Document to which it is a party and the foregoing cases, such failure shall continue for fifteen two (152) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect solely in the case of the representations made under Section 2.1(a), 2.1(e) and 2.1(h), shall continue to any such representation, warranty, certification or statement that was so be materially incorrect and which can be cured, is not cured within ten for a period of thirty (1030) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachobtains knowledge thereof; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains a materiality threshold and provided further, that any materiality threshold, including Material Adverse Effectmisrepresentation or certification for which Buyer received a Purchase Price Credit in accordance with Section 1.5 of this Agreement shall not constitute a Termination Event hereunder.
(c) Any Originator shall breach any covenant contained in Section 4.1(b)(i) or Section 4.2 (other than Section 4.2(a)(ii)).
(d) Any Originator shall breach covenant contained in Section 4.2(a)(ii) and such breach is not remedied within ten (10) Business Days of its occurrence,
(e) Any Originator shall breach, fail to perform or observe any covenant contained in any Section of this Agreement (which is not covered by another subsection, paragraph or clause of this Section 5.1) or of any other Transaction Document to which it is a party which is not remedied within thirty (30) days after written notice from Buyer (or the Administrator, as Buyer’s pledgee).
(f) (i) Failure of Jarden, any Originator or any of its Affiliates their material Subsidiaries to pay any Indebtedness Material Debt when due in excess of $50,000,000due; or the (ii) default by Jarden or any Originator of its Subsidiaries in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any Material Debt was created or is governed, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any other event shall occur or condition exist, the effect of which is to cause the holder or holders of such Indebtedness Material Debt to cause such Material Debt to become due prior to its stated maturity; (iii) Material Debt of an Originator Jarden or any of its Affiliates Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled paymentpayment or as a result of the sale of an asset securing such Material Debt) prior to the date of stated maturity thereof.
; or (div) Any Originator default by Jarden or any of its Subsidiaries in the performance of any financial covenant contained in any agreement under which any Material Debt was created or is governed, the effect of which is to permit the holder or holders of such Material Debt to cause such Material Debt to become due prior to its stated maturity.
(g) (i) Any Originator or Performance Guarantor shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against any Originator or Performance Guarantor seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) any Originator or Performance Guarantor shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (g).
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(fh) A Change of Control shall occur.
(gi) One Jarden or any of its Subsidiaries shall fail within thirty (30) days to pay, bond or otherwise discharge, or stay execution of, one or more final judgments judgment(s) or order(s) for the payment of money in an amount in excess of $50,000,000, individually or 50,000,000 in the aggregate, shall be entered against any Originator on claims not aggregate (exclusive of judgment or order amounts fully covered by independent third-party insurance where the insurer has not disputed or as to which the insurance carrier has denied its responsibility, and coverage in respect of such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of executionor order).
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Contribution and Sale Agreement (Jarden Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues shall continue for three two (32) consecutive Business Days, or ;
(iib) Any Originator shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ia) of this paragraph (a)Section 5.1) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen ten (1510) consecutive days after either (other than Section 4.2(c), which shall be seven (7i) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Responsible Officer of such Originator knows becomes aware thereof or should have known of (ii) written notice thereof to such breach.Originator by the Agent, any Purchaser Agent or any Purchaser;
(bc) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect false or misleading in any material respect when made or deemed made and, with respect to provided that any such representation, warranty, misrepresentation or certification or statement that was so incorrect and for which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause Buyer has actually received a Purchase Price Credit shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.constitute a Termination Event hereunder;
(cd) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,00075,000,000 and such failure shall continue beyond the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Indebtedness was created or is governed (and such default shall continue for the applicable grace period, 6.05Aif any, 6.06Aunder the applicable agreement), 6.08Athe effect of which is to cause, 6.11Aor to permit the holder or holders of such Indebtedness to cause, 6.13A, 6.14A, 6.15A such Indebtedness to become due prior to its stated maturity unless (A) BTMU is a party to such other agreement or 6.16A instrument and (B) BTMU and the other requisite lenders thereunder consent to a written waiver of such default or other event in accordance with the Senior Credit Agreement terms of such agreement or instrument; or any such Indebtedness of an such Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.;
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.Originator;
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,00075,000,000, individually or in the aggregate, shall be entered against Schein or any of its Subsidiaries and (A) such amount remains unpaid and (B) such amount remains undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Originator to enforce any such judgment;
(g) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted in, or could be reasonably expected to have, a material adverse affect on claims not covered by insurance the business, financial condition, operations or properties of Schein and the ERISA Affiliates taken as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.whole;
(h) A Purchase Agreement Termination Event shall have occurred;
(i) Schein becomes unable for any reason to convey or reconvey Receivables originated by Schein in accordance with the provisions of this Agreement; or
(j) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivables, Collections and/or Related Security or any assets of Buyer, any Originator or any Affiliate and such the lien shall continue until the earlier of (i) not have been released within seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related SecurityPurchased Assets.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event:”) shall occur (regardless of the reason therefor):
(a) Any Originator the Borrower shall fail (i) to make any payment or deposit required hereunder of any monetary Borrower Obligation when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) payable and the same shall remain unremedied for one (1) Business Day or more; or
(iiii) the Borrower shall fail to perform deliver a Daily Report, Weekly Report, Monthly Report or Borrowing Base Certificate as and when required hereunder and such failure shall remain unremedied for two (2) Business Days or more, (ii) any Originator shall fail or neglect to perform, keep or observe any covenant or agreement provision of Section 4.04 of the Sale Agreement or Article V of the Sale Agreement, (iii) the Borrower, any Originator or the Servicer shall fail or neglect to perform, keep or observe any covenant or other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 8.01) and the same shall remain unremedied for two (a)2) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known the Borrower becoming aware of such breach.breach and the Borrower’s receipt of notice thereof; or
(bc) Any representationan Originator, warrantythe Borrower, certification the Parent or statement made by any Originator of the Parent’s other Subsidiaries shall fail to make any payment with respect to any of its Debts which, except with respect to the Borrower, is in this Agreementan aggregate principal amount exceeding $175,000,000 (other than Borrower Obligations) when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) a default or breach or other Transaction Document occurrence shall occur and be continuing under any agreement, document or instrument to which it an Originator, the Borrower, the Parent or any of the Parent’s other Subsidiaries is a party or in any by which it or its property is bound (other document delivered pursuant thereto shall prove than a Related Document) which relates to have been incorrect in any material respect when made or deemed made anda Debt which, except with respect to any such representation, warranty, certification or statement that was so incorrect and which can be curedthe Borrower, is not cured in an aggregate principal amount exceeding $175,000,000, which event shall remain unremedied within ten (10) days after the earlier of (I) applicable grace period with respect thereto, and the date such Originator receives notice effect of such default, breach from Buyer, or occurrence is to cause or to permit the Agent holder or any Lender Group Agent and (II) the date an Authorized Officer of holders then to cause such Originator knows Debt to become or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared due prior to be due and payable or required to be prepaid their stated maturity (other than by (i) secured Debt that becomes due solely as a regularly scheduled paymentresult of the sale, transfer or other disposition of the property or assets securing such Debt and (ii) prior to termination events or any other similar event under the documents governing swap contracts for so long as such event of default, termination event or other similar event does not result in the occurrence of an early termination date or any acceleration or prepayment of maturity thereof.any amounts or other Debt payable thereunder); or
(d) Any Originator a case or proceeding shall have been commenced against the Borrower, any Originator, the Parent or any of its the Parent’s other Subsidiaries seeking a decree or order in respect of any such Person under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so long as the Borrower is not a debtor in any such case or proceedings, such case or proceeding continues for 60 days unless dismissed or discharged; provided that such 60-day period shall be deemed terminated immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (d) or (y) any of the events described in Section 8.01(e) shall have occurred; or
(e) the Borrower, any Originator, the Parent or any of the Parent’s other Subsidiaries shall (i) file a petition seeking relief under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of any proceedings under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or similar law or to the filing of any petition thereunder or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing; or
(f) any Originator, the Borrower, Parent, or the Servicer (i) generally does not pay its debts as such debts become due or shall admit admits in writing its inability to to, or is generally unable to, pay its debts generally as such debts become due or shall make a general assignment for the benefit of creditors.
(eii) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.is not Solvent; or
(g) One a final judgment or more final judgments for the payment of money in an excess of $175,000,000 in the aggregate (net of (i) amounts covered by valid third-party indemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim and (ii) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and one or more reputable insurers (as determined by Parent) covering payment thereof) at any time outstanding shall be rendered against any Originator, the Parent or any Subsidiary of the Parent (other than the Borrower) and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) the same shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or
(h) a final judgment or judgments for the payment of money in excess of $50,000,000100,000 in the aggregate at any time outstanding shall be rendered against the Borrower, individually and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) the same shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or
(i) (i) any information contained in any Borrowing Base Certificate or any Borrowing Request is untrue or incorrect in any material respect, or (ii) any representation or warranty of any Originator or the Borrower herein or in any other Related Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base 44 Certificate or any Borrowing Request) made or delivered by or on behalf of such Originator or the aggregate, shall be entered against Borrower to any Originator on claims not covered by insurance Affected Party hereto or thereto is untrue or incorrect in any material respect as to which of the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.date when made or deemed made; or
(hj) The Internal Revenue Service any Governmental Authority (including the IRS or the PBGC) shall file notice of a lien pursuant Lien with respect to Section 6323 a Pension Plan of any Originator, the Parent or any of their respective ERISA Affiliates with regard to any assets of any Originator, the Parent or any of their respective ERISA Affiliates (other than a Lien (i) limited by its terms to assets other than Transferred Receivables and (ii) not materially adversely affecting the financial condition of such Originator, the Parent or any such ERISA Affiliate or the ability of the Tax Code Servicer to perform its duties hereunder or under the Related Documents); or
(k) any Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until assets of the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBorrower, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted contribution failure occurs with respect to such any Pension Plan under Section 412 of the Tax Code Borrower or Section 303 any ERISA Affiliate of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings Borrower sufficient to give rise to a lien under Section 4041(csection 303(k) of ERISA; or
(l) (1) there shall have occurred any event which, in the reasonable judgment of the Administrative Agent (acting at the direction of the Requisite Lenders), materially and adversely impairs (i) the ability of the Originators (taken as a whole) to originate Receivables (other than Excluded Receivables) of a credit quality which are at least of the credit quality of the Receivables (other than Excluded Receivables) as of the 2016 Effective Date, (ii) the financial condition or operations of the Originators (taken as a whole), the Borrower or the Parent, or (iii) the collectability of Receivables (other than Excluded Receivables), or (2) the Administrative Agent shall require such Originator or any have determined in the exercise of its ERISA Affiliates reasonable judgment(and so notified the Borrower) that any event or condition that has had or would reasonably be expected to provide security under Section 401(a)(29) have or 412 of the Tax Code or Section 306 or 307 of ERISAresult in a Material Adverse Effect has occurred; or
(ivi) results a default or breach shall occur under any provision of the Sale Agreement and after the passing of any applicable grace period the same shall remain unremedied for two (2) Business Days or more following the earlier to occur of an Authorized Officer of the Borrower becoming aware of such breach and the Borrower’s receipt of notice thereof, or (ii) the Sale Agreement shall for any reason cease to evidence the transfer to the Borrower of the legal and equitable title to, and ownership of, the Transferred Receivables; or
(n) except as otherwise expressly provided herein, any Account Agreement shall have been modified, amended or terminated without the prior written consent of the Administrative Agent and the Requisite Lenders; or
(o) an Event of Servicer Termination shall have occurred; or
(A) the Borrower shall cease to hold valid and properly perfected title to and sole record and beneficial ownership in the Transferred Receivables and the other Borrower Collateral or (B) the Administrative Agent (on behalf of the Lenders) shall cease to hold a liability to such Originator first priority, perfected Lien in the Transferred Receivables or any of the Borrower Collateral; or
(q) a Change of Control shall have occurred; or
(r) the Borrower shall amend its ERISA Affiliates under applicable lawcertificate of incorporation or bylaws without the express prior written consent of the Requisite Lenders and the Administrative Agent; or
(s) the Borrower shall have received an Election Notice pursuant to Section 2.01(d) of the Sale Agreement; or
(t) on any date of determination, (i) the Default Trigger Ratio shall exceed 2.25%; (ii) the Delinquency Trigger Ratio shall exceed 2.50%; (iii) the Dilution Trigger Ratio shall exceed 5.75%; or (iv) the Receivables Collection Turnover Trigger shall exceed 52.5 days; or
(u) [reserved];
(v) any material provision of any Related Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms (or any Originator or the Borrower shall challenge the enforceability of any Related Document or shall assert in writing, or Title IV engage in any action or inaction based on any such assertion, that any provision of any of the Related Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(w) institution of any steps by the Borrower or any other Person to terminate a Pension Plan of the Borrower or any ERISA other than Affiliate of the Borrower if as a result of such termination the Borrower could be required to make a contribution to such Pension Plan, or could incur a liability for PBGC premiums due but not delinquent under Section 4007 of ERISAor obligation to such Pension Plan, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,0001,500,000; or
(x) [reserved]; or
(y) a Funding Excess exists at any time and the Borrower has not repaid the amount of such Funding Excess within one (1) Business Day in accordance with Section 2.08; then, and in any such event, the Administrative Agent, may, with the consent of the Requisite Lenders, and shall, at the request of the Requisite Lenders, by notice to the Borrower, declare the Facility Termination Date to have occurred without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided that the Facility Termination Date shall automatically occur upon the occurrence of any of the Termination Events described in Section 8.01(d) or (e), in each case without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Upon the occurrence of the Facility Termination Date, all Borrower Obligations shall automatically be and become due and payable in full, without any action to be taken on the part of any Person. In addition, if any Event of Servicer Termination shall have occurred, then the Administrative Agent may, and shall, at the request of the Requisite Lenders, by delivery of a Servicer Termination Notice to Buyer and the Servicer, terminate the servicing responsibilities of the Servicer under the Sale Agreement in accordance with the terms thereof.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event12.1. If:
(a) Any Originator shall fail (i) the Lessor fails to make materially perform or materially breaches any payment of its obligations under this Agreement, or deposit required hereunder when due under any undertaking or arrangement entered into in connection herewith and, for any such payment or deposit in the case only of a failure which in the opinion of the Lessee is not in respect capable of principalbeing remedied, such failure continues for three is not remedied to the Lessee's satisfaction within thirty (330) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows Lessor became or should have known been aware of such breach.the failure;
(b) Any any representation, warranty, certification warranty or statement which is made (or acknowledged to have been made) by any Originator the Lessor in this Agreement, any other Transaction Document to which it is a party Agreement or in any other document delivered pursuant thereto shall prove certificate, statement, or notice provided under or in connection with this Agreement proves to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so be incorrect and which can reasonably threatens the use and enjoyment of the Equipment, or if repeated at any time with reference to the facts and circumstances subsisting at such time would not be curedaccurate in such respect ;
(c) an encumbrancer takes possession of, or a trustee or similar officer is appointed in respect of, all or any substantial part of the business or assets of the Lessor, or distress or any form of execution is levied or enforced upon or sued out against any substantial part of such assets and is not cured discharged within ten (10) days after of being levied, enforced or sued out, or any Security Interest which may for the earlier time being affect any substantial part of its assets becomes enforceable;
(Id) the date Lessor is declared insolvent;
(e) the Lessor convenes a meeting of its creditors or proposes to make any arrangement or composition with ("ARRANGEMENT"), or any assignment for the benefit of, its creditors or a petition is presented or a meeting is convened for the purpose of considering a resolution, or other steps are taken, for the winding-up of the Lessor, UNLESS :
(i) the winding-up is for the purposes of and followed by a reconstruction previously approved in writing by the Lessor;
(ii) the Arrangement results in the Lessor continuing as a going concern or the Lessee is of the opinion that the Arrangement will likely result in the Lessor continuing as a going concern;
(f) the ownership of the Equipment or any part of it by Lessor is contested in legal proceedings and final judgment which impugns, undermines or prevents the Lessor's ability to lease the Equipment to the Lessee in accordance with the terms of this Agreement, is obtained. then, the Lessee may at any time by notice in writing to the Lessor immediately treat such Originator receives event as a repudiation by the Lessor of this Agreement and terminate the leasing of the Equipment under this Agreement.
12.2. The Lessee shall be in default if:
(a) it fails to pay the Rental or any part thereof on the Rental Payment Date; or
(b) it fails to materially perform or materially breaches any of its obligations under this Agreement, whether express or implied which the Lessor determines is not capable of remedy; or
(c) it fails to materially perform or materially breaches any covenant or condition which the Lessor determines that it is capable of being remedied but not remedied by the Lessee within a period of ten (10) days after notice from the Lessor; or
(d) if it intimates to the Lessor, in writing before the expiry of the Lease Period that it no longer desires to continue with the leasing for whatever reason; or
(e) if it attempts to move, sell, transfer, encumber or sublease the Equipment or any part thereof without the written consent of the Lessor; or
(f) it files or has filed against it a petition in bankruptcy or becomes insolvent or makes an assignment for the benefit of its creditors or pass a resolution for its winding-up (otherwise then by way of amalgamation or re-construction).
(a) Upon the occurrence of any one of the above events specified in Clause 12.2, the Lessor shall be entitled to terminate this Agreement or this lease immediately without notice whereupon the Lessee shall deliver the Equipment to the Lessor within fourteen (14) days of receiving the Lessor's notice of such breach from Buyertermination in writing, failing which the Lessor shall be entitled to enter upon any land or building on or in which the Equipment is located or kept and take possession and remove the Equipment.
(b) The Lessee shall, upon the termination of this Agreement or this lease, pay to the Lessor all Rental Payments owing to the Lessor under this Agreement for the unexpired Lease Period. In addition, the Agent Lessee shall be liable for all legal professional fees, other costs and expenses incurred or expended by the Lessor to recover from the Lessee any Lender Group Agent monies owed by the Lessee to the Lessor or to enforce or exercise any of the Lessor's remedies hereunder. Each remedy shall be cumulative and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect addition to any representationother remedy otherwise available to the Lessor at law or in equity, warranty, certification and for the avoidance of doubt no express or statement that itself contains implied waiver of any materiality threshold, including Material Adverse Effectdefault of any provisions of this Agreement shall constitute a waiver of any of the Lessor's other rights.
(c) Failure Forthwith upon taking possession of the Equipment pursuant to Clause 12.3(a), the Lessor shall take such steps as may be necessary to offer the Equipment for sale with the intention of realizing the maximum amount of proceeds from such sale as is practicable under the circumstances. The Lessee shall be entitled to participate in such sale which shall be completed within one month from the Lessor obtaining delivery or taking possession of the Equipment. The proceeds of the sale shall be applied in the following order of priority:
(i) firstly, towards bearing the costs of conducting such sale (including any tax or stamp duty arising therefrom);
(ii) secondly, towards the repayment to the Lessor of any Originator or any of its Affiliates amounts owed by the Lessee to pay any Indebtedness when due in excess of $50,000,000the Lessor under this Agreement for the unexpired Lease Period; or and
(iii) thirdly, the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A balance of the Senior Credit Agreement or any proceeds of such Indebtedness of an Originator or any of its Affiliates sale (if any) shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to for the date account of maturity thereofthe Lessee.
(d) Any Originator or any In the event that following the sale of its Subsidiaries the Equipment provided for under Clause 12.3(c), the Lessor shall generally not pay its debts as such debts become due or have realized the full amount of sums owned by the Lessee to the Lessor under this Agreement for the unexpired Lease Period, the Lessee shall admit in writing its inability be liable to pay its debts generally or shall make a general assignment the Lessor for such amount as remains unpaid by the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability Lessee to the PBGC or a Plan that would have a Material Adverse EffectLessor.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events (each, a ------------------ "TERMINATION EVENT") shall constitute a Termination Eventoccur and be continuing:
(a) Any Originator shall fail (i) to make the Seller shall default in the payment of any payment or deposit required amount owed by it hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues shall remain unremedied for three (3) consecutive one Business DaysDay, or (ii) the Seller shall fail to perform or observe any covenant contained in Section 4.2 Sections 5.03(a), (other than Sections 4.2(ab), (c), (e), (g), (h) and 4.2(cor (k)) for one (1) Business Day , or (iii) the Seller shall fail to perform or observe any other term, covenant or agreement (other than as referred to contained in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party Agreement or the Related Documents and such failure shall continue remain unremedied for fifteen (15) consecutive days (other than Section 4.2(c)ten days, which in each case after written notice thereof shall be seven (7) days) after have been given by the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Operating Agent or any Lender Group the Collateral Agent and (II) to the date an Authorized Officer of such Originator knows or should have known of such breach.Seller; or
(bi) Any representation, warranty, certification a payment default has occurred and is continuing under any instrument or statement made by any Originator in this Agreement, any other Transaction Document agreement to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator GE Capital or any of its Affiliates to pay any Indebtedness when due in excess is a party, evidencing, securing or providing for the issuance of $50,000,000; Debt of the Originator or the default by Seller, or (ii) a party has accelerated any Originator in payment of Debt under any instrument or agreement evidencing, securing or providing for the performance issuance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A Debt of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.Seller in an amount exceeding $1,000,000; or
(dc) Any the Originator or any of its Subsidiaries the Seller shall generally not pay any of its debts respective Debts as such debts Debts become due due, or shall admit in writing its inability to pay its debts generally Debts generally, or shall make a general assignment for the benefit of creditors.
(e) An Event , or any proceeding shall be instituted by or against the Originator or the Seller seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of Bankruptcy shall occur with respect to any Originator it or any of its Subsidiaries.Debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur, or the Originator or the Seller shall take any corporate action to authorize any of the actions set forth in this subsection; or
(fd) A Change of Control shall occur.
(g) One judgments or more final judgments orders for the payment of money (other than such judgments or orders in an amount respect of which adequate insurance is maintained for the payment thereof) in excess of $50,000,000, individually or 1,000,000 in the aggregateaggregate against the Originator or any Affiliate of the Originator shall remain unpaid, shall be entered against any Originator unstayed on claims not covered by insurance appeal, undischarged, unbonded or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect undismissed for sixty (60) consecutive a period of 30 days without a stay of execution.or more; or
(he) The a judgment or order for the payment of money is rendered against the Seller; or
(f) there is a material breach of any of the representations and warranties of the Seller set forth in Section 4.01; or
(g) any Governmental Authority (including the Internal Revenue Service or the PBGC) shall file notice of a lien pursuant in an aggregate amount greater than $1,000,000 with regard to Section 6323 any assets of the Tax Code Originator (other than a lien (i) limited by its terms to assets other than Receivables and (ii) not materially adversely affecting the financial condition of such Originator or the Originator's ability to perform as Servicer hereunder); or
(h) any Governmental Authority (including the Internal Revenue Service or the PBGC) shall file notice of a lien with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until assets of the earlier of Seller; or
(i) seven the Operating Agent or the Collateral Agent has determined that any event which materially adversely affects the collectibility of the Receivables has occurred, or that any other event which materially adversely affects the financial condition of the Seller, the ability of the Originator or the Seller to collect Receivables or the ability of the Seller to perform hereunder has occurred; or
(7j) days after inception there shall occur a failure of the Originator to make any payment, repurchase any Transferred Receivables or substitute any Transferred Receivables with Eligible Receivables as required under Section 4.04 of the Transfer Agreement for one Business Day, or if the Transfer Agreement shall for any reason cease to evidence the transfer to the Seller (or its assignees or transferees) of the legal and equitable title to, and ownership of, the Transferred Receivables; or
(k) any Lockbox Agreement or the Transfer Agreement have been amended or terminated without the written consent of the Purchaser, the Operating Agent and the Collateral Agent; or
(l) an Event of Servicer Termination has occurred; or
(m) the Operating Agent has determined that the funding of Receivables hereunder is impracticable due to a drop in or withdrawal of any of the ratings assigned to the Purchaser's Commercial Paper, the imposition of Additional Amounts, restrictions on the amount of Transferred Receivables it may finance or the inability of the Purchaser to issue Commercial Paper; or
(n) the Purchaser and the Collateral Agent cease to hold a first priority, perfected ownership interest in the Transferred Receivables; or
(o) a Seller LOC Draw has occurred; or
(p) the obligations of the Transaction Liquidity Providers to make Transaction Liquidity Loans, the proceeds of which may be used by the Purchaser to make Purchases to the Seller, have terminated; or
(q) a breach of the covenants in Exhibit H has occurred; or
(r) a breach of a provision of the Transfer Agreement has occurred that is not remedied within 1 Business Day in accordance with Section 4.04 thereof;
(s) an Event of Default under the Collateral Agent Agreement has occurred; or
(t) the short term debt rating of a Transaction Liquidity Provider has been downgraded by a Rating Agency and such Transaction Liquidity Provider has not been replaced in accordance with the Transaction Liquidity Agreement within 30 days; or
(u) the Purchase Discount Rate shall be less than 50% for two consecutive Settlement Periods; then and in any such event, the Operating Agent shall, at the request, or may with the consent, of the Purchaser or the Collateral Agent, by notice to the Seller declare the Facility Termination Date to have occurred, whereupon the Facility Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Seller; provided, that in the event that any of the Termination Events described -------- in subsections (b)(i), (c), (o), (p), (s) or (t) have occurred or the Termination Event described in subsection (a)(i) has occurred and remained unremedied for four days, the Facility Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Seller. The Operating Agent shall (i) give notice to the Servicer of any downgrade of a Transaction Liquidity Provider pursuant to subsection (t), and (ii) knowledge give notice as soon as practicable, but no later than the later of (x) 60 days' before the date of termination or (y) promptly after receipt of notice by any Secured Party the Transaction Liquidity Provider of such lientermination of the obligations of the Transaction Liquidity Provider to make Transaction Liquidity Loans, or the PBGC proceeds of which may be used by the Purchaser to make Purchases to the Seller shall impose a lien have terminated, notify the Seller and Servicer, provided that the failure to give notice pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
and (ii) is being, or within above shall not affect the five years preceding the Closing Date, has been, terminated or the subject operation of termination proceedings under this Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect9.01.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase and Servicing Agreement (Merisel Inc /De/)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator PCI, Seller or the Servicer shall fail (i) to make any payment or deposit required hereunder pay when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) amounts required to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) be paid to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBuyers pursuant hereto.
(b) Any representation, warranty, certification representation or statement warranty made or deemed to have been made by any or on behalf of Seller, PCI or an Originator in the Transaction Documents or on behalf of Seller, PCI or an Originator in any certificate, statement, report or other writing furnished by or on behalf of Seller to the Agent or a Buyer pursuant to this Agreement, Agreement or any other Transaction Document to which it is a party instrument, document or in any other document delivered pursuant thereto agreement shall prove to have been incorrect false or misleading in any material respect when made on the date as of which the facts set forth are stated or certified or deemed made and, with respect to any such representation, warranty, certification have been stated or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.certified;
(c) Failure of PCI or Seller shall fail to comply with any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any termagreement, covenant, condition, provision or condition term contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A the Transaction Documents (and such failure shall not constitute a Termination Event under any of the Senior Credit Agreement or any other provisions of this Section 11.1) and such Indebtedness of an Originator or any of its Affiliates failure to comply shall be declared continue for 30 calendar days after notice thereof to be due and payable or required to be prepaid (other than Seller by a regularly scheduled payment) prior to the date of maturity thereof.Agent;
(d) Any PCI, Seller, an Originator or any of its Subsidiaries a Hedge Provider shall become insolvent or shall generally not pay its debts as such debts become due they mature or shall admit in writing its inability to pay its debts generally apply for, shall consent to, or shall make acquiesce in the appointment of a general assignment custodian, trustee or receiver of PCI, Seller, an Originator or a Hedge Provider or for a substantial part of the benefit property thereof or, in the absence of creditors.such application, consent or acquiescence, a custodian, trustee or receiver shall be appointed for PCI, Seller, an Originator or a Hedge Provider or for a substantial part of the property thereof and shall not be discharged within 30 days;
(e) An Event of Bankruptcy Any bankruptcy, reorganization, debt arrangement or other proceedings under any bankruptcy or insolvency law shall occur with respect to any be instituted by or against PCI, Seller, an Originator or a Hedge Provider, and, if instituted against PCI, Seller, and Originator or a Hedge Provider, shall have been consented to or acquiesced in by PCI, Seller, an Originator or a Hedge Provider, or shall remain undismissed for 30 days, or an order for relief shall have been entered against PCI, Seller, an Originator or a Hedge Provider, or PCI, Seller, an Originator or a Hedge Provider shall take any of its Subsidiaries.corporate action to approve institution of, or acquiescence in, such a proceeding;
(f) A Change of Control Any dissolution or liquidation proceeding shall occur.be instituted by or against PCI, Seller, an Originator or a Hedge Provider and, if instituted against PCI, Seller, an Originator or a Hedge Provider shall be consented to or acquiesced in by PCI, Seller, an Originator or a Hedge Provider or shall remain for 30 days undismissed, or PCI, Seller, an Originator or a Hedge Provider shall take any corporate action to approve institution of, or acquiescence in, such a proceeding;
(g) One A judgment or more final judgments for the payment of money in an amount in excess of the sum of $50,000,000, individually or 2,000,000 in the aggregate, aggregate shall be entered rendered against PCI or Seller and PCI or Seller shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, prior to any Originator execution on claims not covered such judgments by insurance or as to which such judgment creditor, within 30 days from the insurance carrier has denied its responsibilitydate of entry thereof, and within said period of 30 days, or such longer period during which execution of such judgment shall continue unsatisfied be stayed, appeal therefrom and in effect for sixty (60) consecutive days without a stay of execution.cause the execution thereof to be stayed during such appeal;
(h) The Internal Revenue Service maturity of any indebtedness of PCI or Seller in an aggregate amount of $2,000,000 or more shall file notice be accelerated, or PCI or Seller shall fail to pay any such indebtedness in such amount when due or, in the case of a lien pursuant to Section 6323 of the Tax Code with regard to such indebtedness payable on demand, when demanded, or any of the Receivables, Collections and/or Related Security event shall occur or condition shall exist and such lien shall continue until for more than the earlier period of (i) seven (7) days after inception grace, if any, applicable thereto and (ii) knowledge by shall have the effect of causing, or permitting the holder of any Secured Party such indebtedness or any trustee or other Person acting on behalf of such lienholder to cause, such indebtedness in such amount to become due prior to its stated maturity or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to realize upon any of the Receivables, Collections and/or Related Security.collateral given as security therefor;
(i) Any Plan Person, or group of Persons acting in concert, that owned less than 5% of the shares of any voting class of stock of PCI shall have acquired more than 50% of the shares of such voting stock;
(j) This Agreement or the PCI Support Agreement shall, at any time after the execution and delivery hereof, cease to be in full force and effect or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by either PCI or Seller, or PCI or Seller shall deny that it has any or further liability or obligation under this Agreement or the PCI Support Agreement;
(k) Any execution or attachment shall be issued whereby any substantial part of the property of PCI, Seller or an Originator shall be taken or attempted to be taken and the same shall not have been vacated or stayed within 30 days after the issuance thereof;
(l) The Seller or Originators shall cease to be wholly-owned Subsidiaries of PCI;
(m) The Intercreditor Agreement shall, at any time after the execution and delivery thereof, be breached by Seller or JPMorgan, cease to be in full force and effect or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by Seller or JPMorgan, or Seller or JPMorgan shall deny that it has any or further liability or obligation under the Intercreditor Agreement;
(n) PCI’s Consolidated Net Worth at any time shall be less than the sum of its respective ERISA Affiliates(i)$904,546,000, plus (ii)50% of the cumulative positive quarterly Consolidated Net Income for all fiscal quarters of PCI following the fiscal quarter of PCI ending January 27, 2007, (without taking into account any net loss in any such fiscal quarter), plus (iii)100% of the amount, if any, by which stockholder’s equity of PCI is, in accordance with GAAP, increased for all fiscal quarters of PCI following the fiscal quarter of PCI ending January 27, 2007 as a result of (A) the issuance of any capital stock of PCI or (B) any Acquisition;
(o) PCI’s ratio of Consolidated Total Debt to Consolidated Adjusted EBITDA shall at any time be greater than 3.25 to 1.0.
(p) As of any reporting date or Settlement Date:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 average of the Tax Code or Section 302 of ERISA Default Ratio for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 fiscal month and each of the Tax Code or Section 303 of ERISAtwo immediately preceding fiscal months shall exceed 5.0%; or
(ii) Excess Spread is beingless than 2.0% (or if a Hedge Agreement is in place, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other less than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect1%).
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Contract Purchase Agreement (Patterson Companies, Inc.)
Termination Events. The occurrence of any one or more of This Agreement may be terminated prior to the following events shall constitute a Termination EventClosing:
(a) Any Originator shall fail by the mutual consent of Parent and the Company;
(b) by either Parent or the Company if the Closing has not taken place on or before the End Date (as defined below), other than as a result of any failure on the part of such terminating party to comply with or perform any covenant or obligation of such terminating party set forth in this Agreement;
(c) by Parent if (i) any representation or warranty of the Company or any Key Stockholder contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to make any payment or deposit required hereunder when due andthe date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all “Material Adverse Effect” and other materiality qualifications (other than those set forth in Sections 2.4(c), 2.8, 2.9(c)(iii), 2.10(a)(vii), 2.10(a)(xviii), 2.10(c), 2.10(d) and 2.26) and all “Knowledge” qualifications contained in such payment representations and warranties shall be disregarded, and (B) any update of or deposit which is not in respect modification to the Disclosure Schedule made or purported to have been made on or after the date of principal, such failure continues for three (3) consecutive Business Daysthis Agreement shall be disregarded), or (ii) to perform any of the covenants or observe obligations of the Company or any covenant Key Stockholder contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure Agreement shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect breached in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachrespect; provided, however, that the materiality threshold if an inaccuracy in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure breach of any Originator representation or warranty of the Company or any Key Stockholder as of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior date subsequent to the date of maturity thereof.this Agreement or a breach of a covenant by the Company or any Key Stockholder is curable by the Company or such Key Stockholder through the use of commercially reasonable efforts during the 30-day period after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 9.1(c) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Key Stockholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(d) Any Originator by the Company if (i) any representation or warranty of Parent contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.1 would not be satisfied, or (ii) any of its Subsidiaries Parent’s covenants contained in this Agreement shall generally not pay its debts have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of Parent as such debts become due of a date subsequent to the date of this Agreement or shall admit a breach of a covenant by Parent is curable by Parent through the use of commercially reasonable efforts during the 30-day period after the Company notifies Parent in writing its inability of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to pay its debts generally the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or shall make a general assignment for the benefit of creditors.breach;
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of Parent if (i) seven (7) days after inception and there shall have occurred any Material Adverse Effect, or (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred or circumstance shall exist that, in the opinion of the Required Lenders, when taken together combination with all any other ERISA Events that have occurred for all periods and are then outstandingevents or circumstances, could reasonably be expected to have or result in liability a Material Adverse Effect;
(f) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(g) by Parent, if any condition contained in Section 7 shall become incapable of fulfillment;
(h) by the Company, if any condition contained in Section 8 shall become incapable of fulfillment; or
(i) by Parent if the Required Merger Stockholder Votes are not obtained within one day after the date of this Agreement. The “End Date” shall be April 15, 2004; provided, however, that (i) if, on April 15, 2004, each of the Performance Guarantor conditions set forth in Sections 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing) is satisfied or any has been waived, other than either or both of its Subsidiaries the conditions set forth in an aggregate amount Sections 7.6 and 7.12, then the End Date shall be automatically extended until June 15, 2004, and (ii) if the End Date shall have been extended until June 15, 2004 and if, on June 15, 2004, each of the conditions set forth in excess Sections 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing) is satisfied or has been waived, other than either or both of $50,000,000the conditions set forth in Sections 7.6 and 7.12, then the End Date shall be automatically further extended until August 15, 2004.
Appears in 1 contract
Termination Events. The occurrence of any one or more Any of the following events acts or occurrences shall constitute a Termination Event:Event under this Agreement (ea ch, a “Ter mination Event “):
(a) Any Originator OHC shall fail (i) to make observe or perform in any payment or deposit required hereunder when due and, for material respect any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material covenant or agreement (other than as referred required to in clause (i) be performed thereby under this Agreement and the continuance of this paragraph (a)) under any other Transaction Document to which it is such default or breach for a party and such failure shall continue for period of fifteen (15) consecutive calendar days (other than Section 4.2(c), which shall after there has been given to OHC a written notice specifying the default or breach and requiring it to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.remedied;
(b) Any representation, warranty, certification warranty or statement made by any Originator of OHC in this Agreement, any other Transaction Document to Agreement (i) which it is a party not qualified by materiality or in any other document delivered pursuant thereto material adverse effect shall prove to have been be incorrect in any material respect when made or deemed made and, with respect to any as of the date on which such representation, warranty, certification warranty or statement that was so is made or (ii) which is qualified by materiality or material adverse effect shall provide to have been incorrect and which can be cured, is not cured within ten (10) days after the earlier as of (I) the date on which such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification warranty or statement that itself contains any materiality threshold, including Material Adverse Effect.is made;
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates OHC shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator become insolvent, or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally as they mature, or shall make a general assignment for the benefit of creditors.
(e) An Event ; or OHC shall apply for or consent to the appointment of Bankruptcy shall occur with respect to any Originator receiver, trustee, or similar officer for it or for all or any substantial part of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One property; or more final judgments for the payment of money in an amount in excess of $50,000,000such receiver, individually trustee or in the aggregate, similar officer shall be entered appointed without the application or consent of OHC and shall not be discharged within sixty (60) days of appointment; or OHC shall institute (by petition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against OHC; or any Originator on claims not covered by insurance judgment, writ, warrant of attachment or as to which execution or similar process shall be issued or levied against a substantial part of the insurance carrier has denied its responsibility, property of OHC and such judgment shall continue unsatisfied and in effect remain unstayed or undismissed for sixty (60) consecutive days without a stay of execution.days;
(hd) The Internal Revenue Service A voluntary petition naming OHC, as debtor, is filed under the United States Bankruptcy Code, or an involuntary petition naming OHC, as debtor, is filed under the United States Bankruptcy Code and such involuntary petition shall file notice of a lien pursuant remain undismissed for sixty (60) days;
(e) OHC shall liquidate, dissolve, terminate or suspend its business operations or otherwise fail to Section 6323 operate its business in the ordinary course;
(f) Any of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien following shall continue until the earlier of occur: (i) seven (7) days after inception and entry of a court order which enjoins, restrains or in any way prevents OHC from conducting all or any material part of its business affairs in the ordinary course of business, or (ii) knowledge by withdrawal or suspension of any Secured Party license required for the conduct of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any material part of the Receivables, Collections and/or Related Security.
(i) Any Plan business of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAOHC; or
(iig) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of OHC terminates its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectmanagement services hereunder.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a "Termination Event") shall occur:
(ai) Any Originator the Servicer shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant contained in Section 4.2 or agreement under this Agreement and, except as otherwise provided herein, such failure shall continue for 30 days after knowledge or notice thereof, (other than Sections 4.2(aii) the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement and 4.2(c)) such failure shall continue unremedied for one (1) two Business Day Days or (iii) Werner shall resign as Servicer in contravention of Section 2.1(c) hereof and no successor Servicer reasonably acceptable to perform the Agent shall have been appointed by the Agent or observe Werner (or any covenant affiliate thereof) shall fail to transfer to ▇▇▇ ▇uccessor Servicer when required any rights pursuant to this Agreement;
(b) any representation or agreement (other than as referred to warranty made or deemed made by the Servicer under or in clause (i) of connection with this paragraph (a)) under Agreement or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c)party, which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) information or report delivered by the date an Authorized Officer of such Originator knows Servicer pursuant to this Agreement or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto party, shall prove to have been incorrect or untrue in any material respect when made or deemed made andor delivered, with respect to any such representation, warranty, certification and shall remain incorrect or statement that was so incorrect and which can be cured, is not cured within ten (10) untrue for 30 days after notice to the earlier of (I) the date such Originator receives notice Servicer of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.inaccuracy;
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries Servicer shall generally not pay its debts as such debts become due due, or shall admit in writing its inability to pay its debts generally generally, or shall make a general assignment for the benefit of creditors.; or any proceeding shall be instituted by or against the Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Servicer shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(d) a Change in Control shall occur; or
(e) An an Event of Bankruptcy Default under the Financing Agreement shall occur with respect have occurred and be continuing; then, in each case, the Agent shall have the right, by notice to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000Servicer, individually or in to terminate the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 rights of the Tax Code with regard Servicer to any of collect the ReceivablesAccounts hereunder. Following such termination, Collections and/or Related Security and such lien the Agent shall continue until have the earlier of right to (i) seven (7) days after inception and appoint itself or another entity as successor Servicer hereunder in accordance with Section 2.1, (ii) knowledge by any Secured Party of such lien, or direct the PBGC shall impose a lien pursuant Customers to Section 4068 of ERISA with regard to any remit all amounts payable in respect of the ReceivablesAccounts directly to the Agent or its designee or into a Depository Account and (iii) take any and all steps in the name of the Purchaser and on behalf of the Purchaser necessary or desirable, Collections and/or Related Security.
(i) Any Plan in the determination of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded the Agent and in accordance with the minimum funding standard required by Section 412 8.3 of the Tax Code Financing Agreement, to collect any and all amounts or Section 302 portions thereof due in respect of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of and all Accounts, Related Rights and the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectrelated Contracts.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more (a) Each of the following events shall constitute a “Termination Event”:
(a) Any Originator shall fail (i) Default in the payment of any interest on the Loans or any other amount (except principal) due and payable by FC HoldCo, FCA, CF Capital, FC Funding, the Borrower or the Servicer under this Agreement or any other Transaction Document when the same becomes due and payable, and such default shall continue for a period of two (2) business days after the earlier of actual knowledge or written notice thereof;
(ii) Default in the payment of the Monthly Principal Payment Amount when the same becomes due and payable, and such default shall continue for a period of two (2) business days after the earlier of actual knowledge or written notice thereof, provided, that if (x) such failure is caused solely as a result of a change in the Advance Rate or the Legacy Receivables Advance Rate due to make any payment a Performance Trigger and (y) no other Termination Event or deposit required hereunder when due andUnmatured Termination Event, for any such payment Servicer Termination Event or deposit which is not in respect event that, after the giving of principalnotice or the lapse of time, or both, would constitute a Servicer Termination Event, shall have occurred and be continuing, then no Termination Event shall occur under this clause (ii) unless such failure continues for three to exist on the next succeeding Determination Date (3) consecutive Business Days, or (ii) after giving effect to perform or observe any covenant contained the application of Available Funds on the related Payment Date in accordance with Section 4.2 (other than Sections 4.2(a) and 4.2(c2.08)) for one (1) Business Day or ;
(iii) FC HoldCo, FCA, FC Funding, CF Capital or the Borrower shall become subject to an Insolvency Event;
(iv) Failure on the part of FC HoldCo, FCA, CF Capital, FC Funding, the Borrower or the Servicer to duly observe or perform any of its covenants or observe agreements set forth in this Agreement or any covenant or agreement other Transaction Document (other than as referred to described elsewhere in clause (i) of this paragraph (aSection 8.01(a)) under any other Transaction Document to which it is that adversely affects the rights or interests of the Lenders and continues unremedied for a party and such failure shall continue for fifteen period of twenty (1520) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives actual knowledge and notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.thereof;
(bv) Any representation, warranty, certification warranty or statement of FC HoldCo, FCA, CF Capital, FC Funding the Borrower or the Servicer made by any Originator in this AgreementAgreement or any Transaction Document, or any certificate, report or other Transaction Document to which it is a party or in any other document writing delivered pursuant thereto thereto, shall prove to have been be incorrect in any material respect as of the time when made or deemed the same shall have been made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be if capable of being cured, is not cured within ten twenty (1020) days after the earlier of actual knowledge or notice thereof; provided that no breach shall be deemed to occur in respect of any representation or warranty relating to eligibility of any Receivable on the Closing Date, any Funding Date or any Determination Date if FC Funding has repurchased such Receivable in accordance with the provisions of the Purchase Agreement;
(Ivi) the date such Originator receives The Internal Revenue Service shall file notice of such breach from Buyer, a Lien pursuant to Section 6323 of the Agent Internal Revenue Code with regard to any assets of the Borrower or any Lender Group Agent material portion of the assets of FC HoldCo, FCA, CF Capital or FC Funding and such Lien shall not have been released within thirty (II30) days, or the date an Authorized Officer Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of FC HoldCo, FCA, CF Capital, FC Funding or the Borrower and such Originator knows Lien shall not have been released within thirty (30) days;
(a) Any Transaction Document or should any Lien granted thereunder by FCA, CF Capital, FC Funding or the Borrower shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of FCA, CF Capital, FC Funding or the Borrower or (b) FCA, CF Capital, FC Funding or the Borrower or any other party shall, directly or indirectly, disaffirm or contest in any manner such effectiveness, validity, binding nature or enforceability;
(viii) Any Lien securing the Obligations shall, in whole or in part, not be or cease to be a perfected first priority security interest;
(ix) A Servicer Termination Event shall have known occurred;
(x) FC HoldCo, FCA, CF Capital or FC Funding shall fail to pay any principal of or premium or interest on any indebtedness having a principal amount of $5,000,000 or greater, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such breach; providedfailure continue after the applicable grace period, howeverif any, that the materiality threshold specified in the preceding clause agreement or instrument relating to such indebtedness and shall not be applicable with respect waived by the requisite holders of such indebtedness; or any other default under any agreement or instrument relating to any representationsuch indebtedness of FC HoldCo, warrantyFCA, certification CF Capital or statement that itself contains any materiality thresholdFC Funding, including Material Adverse Effect.
(c) Failure of any Originator as applicable, or any other event shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of its Affiliates such default or event is to pay any Indebtedness when due in excess accelerate, or to permit the acceleration of, the maturity of $50,000,000such indebtedness; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such indebtedness shall be required to be made, in each case, prior to the date of stated maturity thereof.;
(dxi) Any Originator There shall occur a “termination event” or “event of default” or similar event (other than a default by a Lender or by a Hedge Counterparty) under any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.other Transaction Document;
(exii) An Event As of Bankruptcy shall occur any Payment Date, after giving effect to the distributions on such Payment Date, (A) the Reserve Amount is less than the Reserve Account Required Amount, and such deficiency is not cured on or prior to the immediately succeeding Payment Date or (B) the Hedge Reserve Amount is less than the Hedge Reserve Account Required Amount and such deficiency is not cured on or prior to the immediately succeeding Payment Date;
(xiii) A notice of termination with respect to any Originator the Master Collection Account Control Agreement shall have been delivered to the Servicer or any the Master Collection Account Control Agreement shall be terminated, and a replacement control agreement with respect to the Lockbox Account and Master Collection Account shall not have become effective within ninety (90) days after the earlier of its Subsidiaries.receipt of such notice or such termination;
(fxiv) As of any Determination Date (in each case calculated without including the Portfolio Purchase Receivables in any component thereof):
(A) the Net Spread shall be less than or equal to 4.00%;
(B) the Rolling Average Delinquency Ratio shall be greater than (x) for any Collection Period during the period from April 1 to September 30 (and the two preceding Collection Periods), greater than 5.75%; or (y) for any Collection Period during the period from October 1 to March 31 (and the two preceding Collection Periods), greater than 6.50%;
(C) the Rolling Annualized Net Loss Ratio shall be greater than 11.00%; or
(D) the Rolling Average Extension Ratio shall be greater than 4.00%;
(xv) A Change of in Control shall occur.have occurred;
(gxvi) The Tangible Net Worth shall be less than the sum of (a) $180,000,000 plus (b) 50% of the cumulative positive net income (without deduction for negative net income) of FC HoldCo for each fiscal quarter having been completed since December 31, 2014;
(xvii) The Leverage Ratio shall be greater than 10.0:1.0;
(xviii) FCA, CF Capital and FC Funding shall, as of the last day of any calendar month, fail to have (A) unrestricted cash and cash equivalents and (B) amounts available to be drawn under the credit facilities of FCA and FC Funding and their consolidated subsidiaries so long as FCA or FC Funding, as applicable, can satisfy all conditions precedent to borrowing such amounts, greater than or equal to $5,000,000;
(xix) The Borrower shall fail to satisfy the requirements of Section 6.03 of this Agreement;
(xx) ▇▇▇▇ ▇▇▇▇▇▇ ceases to be actively engaged in the management and day-to-day affairs of FCA as its president, chief executive officer or as a member of the board of directors of FCA and the Supermajority Lenders have not approved (which approval shall not be unreasonably withheld or delayed) a successor within 60 days of the foregoing; or
(xxi) One or more final judgments for the payment of money in an amount in excess $5,000,000 or more rendered against FCA, CF Capital, FC Funding or any of their material Subsidiaries or Affiliates (other than the Borrower) or one or more final judgments for the payment of $50,000,00050,000 or more rendered against the Borrower, individually or in the aggregate, shall be entered against any Originator on claims and such amount is not covered by insurance or as to indemnity or not discharged, paid or stayed within thirty days after (i) the date on which the insurance carrier right to appeal thereof has denied its responsibilityexpired if no such appeal has commenced, and such judgment shall continue unsatisfied and in effect for sixty or (60ii) consecutive days without a stay of executionthe date on which all rights to appeal have been extinguished.
(hb) The Internal Revenue Service Upon the occurrence of any Termination Event, the Revolving Period will immediately terminate, the Amortization Date will automatically occur, no further Loans will be made hereunder and all Loans and all other amounts owing by the Borrower under this Agreement shall file be accelerated and become immediately due and payable, without demand, presentment or any notice of a lien pursuant to Section 6323 any kind, all of which are hereby expressly waived by the Borrower, in each case, automatically without any further action on the part of the Tax Code with regard Administrative Agent, any Lender or any other Person, and the Administrative Agent and the Lenders will have all rights and remedies available to any of them under the Receivables, Collections and/or Related Security Transaction Documents and applicable law (such lien shall continue until the earlier of (i) seven (7) days after inception rights and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant remedies to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Securitybe cumulative and nonexclusive).
(ic) Any Plan Upon the occurrence of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded the Amortization Date in accordance with Section 8.01(b), the minimum funding standard Revolving Period shall immediately terminate without further action required by Section 412 on the part of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, Person and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectno further Loans will be made hereunder.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment representation or deposit required hereunder when due and, for warranty made by the Transferor in any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect when made, and as a result of which the interests of the Agent, the Buyer or any other Owner hereunder are materially and adversely affected;
(b) any failure by the Transferor to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days;
(c) failure on the part of the Transferor duly to observe or perform in any material respect when made any other covenants or deemed made and, with respect to agreements of the Transferor set forth in any such representation, warranty, certification or statement that was so incorrect Transaction Document and which can be curedcontinues unremedied for a period of 10 days;
(d) a failure by the Transferor, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent CompuCredit or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect direct Affiliate thereof to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of perform any term, provision or condition contained in Sections 6.01Aany agreement to which any such Person is a party and under which any Indebtedness owing by the Transferor, 6.05ACompuCredit or any direct Affiliate thereof greater than $5,000,000 was created or is governed, 6.06Aregardless of whether such failure constitutes an "event of default" or "default" under any such agreement; or any Indebtedness owing by the Transferor, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A CompuCredit or 6.16A any direct affiliate thereof (other than Indebtedness of CompuCredit of the Senior Credit Agreement or any such Indebtedness type described in clause (vi) of an Originator or any the definition of its Affiliates "Indebtedness") greater than $5,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.;
(e) An any Event of Bankruptcy shall occur with respect to any Originator the Transferor, CAC, the Account Owner, the Servicer or any of its Subsidiaries.the Sub-Servicer;
(f) A Change the Agent, on behalf of Control shall occur.the Buyer and the other Owners, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Receivables;
(g) One a Servicer Default shall have occurred, and as a result of which the interests of the Agent, the Buyer or more final judgments any other Owner are materially and adversely affected;
(h) there shall have occurred any material adverse change in the operations of the Transferor, Servicer or Sub-Servicer, or any other event, which materially adversely affects the Transferor's, Servicer's or Sub-Servicer's ability either to collect upon the Receivables or to perform its obligations under the Transaction Documents;
(a) the Liquidity Provider or the Credit Support Provider shall have given notice that an event of default has occurred and is continuing under any of its respective agreements with Buyer; or (b) the Transferor, CAC or any Account Owner is unable for any reason to transfer Receivables in accordance with the provisions of the applicable Transaction Documents; or (c) the Transferor, CAC or any Account Owner for any reason ceases to transfer the Receivables in accordance with the provisions of the applicable Transaction Documents; or (d) a regulatory, tax or accounting body has ordered that the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby be terminated or, as a result of any other event or circumstance, the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby may reasonably be expected to cause the Buyer, such Liquidity Provider or such Credit Support Provider, the Person then acting as the administrator or the manager for the Buyer, or any of their respective Affiliates, as applicable, to suffer materially adverse regulatory, accounting or tax consequences.
(j) the Subordinate Percentage is less than the Required Subordinate Percentage;
(k) CB&T or CAC shall default in the performance of any payment or undertaking to be performed or observed by it under the CB&T Agreement, Affinity Card Agreement or the Facilities Management Agreement and such default shall continue beyond any applicable grace period and shall have a material adverse effect on the interests of money the Agent, the Buyer or any other Owner;
(l) for so long as the Affinity Card Agreement is in effect, the Letter of Credit (as such term is defined in the Affinity Card Agreement) maintained by CompuCredit in favor of CB&T pursuant to Section 3.3 of the Affinity Card Agreement shall, without the consent of CB&T, be terminated, revoked or reduced, or shall be drawn on, and such termination, revocation or reduction shall not have been remedied within five days and, in the case of a drawing, such drawing shall not have been reimbursed within five days;
(m) if CB&T is acting as Servicer or Sub-Servicer with respect to the Receivables or the Accounts in any material respect, the rating of the senior unsecured debt of CB&T is downgraded below Baa2 by Moody's or BBB by Standard & Poor's, respectively;
(n) CompuCredit Corporation shall at any time fail to own more than 50% of the outstanding voting stock of CompuCredit Acquisition Corporation or CompuCredit Acquisition Corporation shall at any time fail to own more than 50% of the outstanding voting stock of the Transferor;
(o) any of Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by CompuCredit, its Affiliates or agents, and such individual's position shall not be filled within 60 days of such individual's termination of employment or status as an amount agent by an individual approved by the Agent;
(p) the Payment Rate for any of the months ending after the Closing Date set forth below shall be equal to or less than the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Months 7 through 9 2.3% Months 10 through 15 2.5% Months 16 through 20 2.7% Months 21 through 25 2.9% Month 26 and thereafter 3.0%;
(q) the Charge-Off Rate for any of the months ending after the Closing Date set forth below shall equal or exceed the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Month 7 42% Month 8 41% Month 9 40% Month 10 39% Month 11 38%;
(r) the Three-Month Average Charge-Off Rate for any of the months ending after the Closing Date set forth below shall equal or exceed the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Months 12 through 17 38% Months 18 through 24 35% Month 25 and thereafter 28%;
(s) the Transferor consolidates or merges with or into any other Person, except that the Transferor may merge with or into another Person so long as (a) the surviving entity is either the Transferor or a Subsidiary of CompuCredit, (b) no Termination Event would occur as a result of such merger and (c) where a Subsidiary of CompuCredit is the surviving entity, such Subsidiary assumes in excess writing all obligations of the Transferor under the Transaction Documents;
(t) CompuCredit consolidates or merges with or into any other Person, except that CompuCredit may merge with or into another Person so long as (a) the surviving entity is either the Servicer or a Subsidiary of CompuCredit, (b) no Termination Event would occur as a result of such merger and (c) where a Subsidiary of CompuCredit is the surviving entity, such Subsidiary assumes in writing all obligations of CompuCredit under the Transaction Documents;
(u) any failure by CompuCredit to perform any term, provision or condition of the Guaranty and, in the case of its failure to make a payment under the Guaranty, such payment equals or exceeds $50,000,000, 500,000 individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(iiv) an Event of Default (as such term is being, or within defined in the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings Purchase Agreement) under Section 4041(c7.1(a) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event Purchase Agreement shall have occurred that, and be continuing if at such time the Senior Amounts (as such term is defined in the opinion of Purchase Agreement) have been paid in full and the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Termination Date has not occurred.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Compucredit Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a be Termination EventEvents (“Termination Events”) hereunder:
(a) Any Originator shall fail the failure of the Borrower or the Equityholder to make any payment when due under one or more agreements for borrowed money owing by it (other than, in the case of the Borrower, this Agreement) to which it is a party in an aggregate amount in excess of (i) with respect to the Borrower, $500,000, and (ii) with respect to the Equityholder, $10,000,000, in each case in excess of any amounts disputed in good faith by such Person and, in each case, such default is not cured within the applicable cure period, if any, provided for under such agreement; or
(b) any failure on the part of the Borrower or the Equityholder duly to observe or perform in any material respect any other covenants or agreements of such Person (other than those specifically addressed by a separate Termination Event), as applicable, set forth in this Agreement or the other Transaction Documents to which such Person is a party and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to such Person and (ii) the date on which a Responsible Officer of such Person acquires knowledge thereof; or
(c) the occurrence of an Insolvency Event relating to the Borrower or the Equityholder; or
(d) the occurrence of a Servicer Default past any applicable notice or cure period provided in the definition thereof; or
(1) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $500,000 (or $10,000,000 with respect to the Equityholder) against the Borrower or the Equityholder, and such Person shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (2) the Borrower or the Equityholder shall have made payments (other than payments made on behalf of such Person from insurance proceeds) of amounts in excess of $500,000 (or $10,000,000 with respect to the Equityholder) in the settlement of any litigation, claim or dispute; or
(f) the Borrower shall have failed to provide a substantive non-consolidation opinion rendered by a law firm reasonably acceptable to the Administrative Agent within thirty (30) days after the Borrower has received written notice from the Administrative Agent that the Administrative Agent reasonably believes the Borrower may no longer qualify as a bankruptcy remote-entity based upon criteria set forth in Section 4.1(v); or
(1) any Transaction Document, or any Lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower or the Servicer,
(1) the Borrower, the Equityholder, the Servicer or any other Governmental Authority shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any lien or security interest thereunder, or
(2) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a first priority perfected security interest (subject only to Permitted Liens) except as otherwise expressly permitted to be released in accordance with the applicable Transaction Document; or
(h) a Borrowing Base Deficiency occurs and continues unremedied in accordance with Section 2.22 within the time period set forth therein; provided that, during. During the period of time that such event remains unremedied, no additional Advances will be made under this Agreement and any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.9; or
(i) failure on the part of the Borrower or the Equityholder to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an aggregate amount in excess of $50,000,000500,000 (including, individually without limitation, with respect to bifurcation and remittance of Interest Collections and Principal Collections or in any other payment or deposit required to be made by the aggregateterms of the Transaction Documents, shall including, without limitation, to any Secured Party, Affected Party or Indemnified Party) required by the terms of any Transaction Document (other than Section 2.3) within three (3) Business Days of the day such payment or deposit is required to be entered against made; provided that if any Originator on claims not covered such failure is solely due to an administrative error or omission by insurance the Servicer, the Administrative Agent or as the Collateral Agent, within five (5) Business Days of the day such payment or deposit is required to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.be made; or
(hj) The the Borrower, the pool of Collateral or the Equityholder shall become required to register as an “investment company” within the meaning of the 1940 Act (provided that it is understood that the Equityholder has elected to be regulated as a “business development company” for purposes of the 1940 Act); or
(k) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Borrower and such lien (other than for a Permitted Lien) shall continue until the earlier of not have been released within five (i5) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBusiness Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivablesassets of the Borrower and such lien shall not have been released within five (5) Business Days; or
(l) any representation, Collections and/or Related Security.
warranty or certification made by the Borrower or the Equityholder in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect and which continues to be unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) Any Plan the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to such Person and (ii) the date on which a Responsible Officer of such Person acquires knowledge thereof; or
(m) failure to pay, on the Termination Date, the outstanding principal of all outstanding Advances, if any, and all Interest and all fees accrued and unpaid thereon together with all other Aggregate Unpaids, including, but not limited to, any Prepayment Penalty; or
(n) without limiting the generality of Section 10.1(i) above, failure of the Borrower to pay Interest within two (2) Business Days of any Originator Payment Date or any within two (2) Business Days of its respective ERISA Affiliates:when otherwise due; or
(io) shall fail the Borrower ceases to have a valid, perfected ownership interest in all of the Collateral (subject to Permitted Liens) except as otherwise expressly permitted to be funded released in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAapplicable Transaction Document; or
(iip) is beingthe Borrower, or within the five years preceding the Closing Date, has been, terminated Equityholder or the subject Servicer fails to observe or perform any agreement or obligation with respect to the management and distribution of termination proceedings under Section 4041(cfunds received with respect to the Collateral, and such failure is not cured within five (5) of ERISABusiness Days; or
(iiiq) shall require such Originator or any a Change of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 Control of the Tax Code Borrower or Section 306 or 307 the Equityholder occurs without the prior written consent of ERISAthe Administrative Agent in its sole discretionRequired Lenders; or
(ivr) results (i) failure of the Borrower to maintain at least one Independent Director for more than seven days, (ii) the removal of any Independent Director of the Borrower without “cause” (as such term is defined in the organizational document of the Borrower) or without giving prior written notice to the Administrative Agent, each as required in the organizational documents of the Borrower or (iii) an Independent Director of the Borrower which is not provided by a liability to such Originator nationally recognized service; or
(s) the Borrower makes any assignment or attempted assignment of their respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of each of the Lenders and the Administrative Agent, which consent may be withheld by any Lender or the Administrative Agent in the exercise of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, sole and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.absolute discretion; or
(jt) An ERISA Event shall have occurred that, in the opinion a breach of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result representation in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Section 4.1(oo).
Appears in 1 contract
Sources: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Termination Events. The occurrence of any one or more Each of the following events shall constitute a "Termination Event:
(a) Any Originator shall fail ": (i) failure by the Borrower to (A) make any payment payment, transfer or deposit required hereunder when due andby the terms of any Basic Document on the day such payment, for any such payment transfer or deposit which is not in respect required to be made (including any payment of principalInterest, Program Fees or Unused Commitment Fees on any Payment Date but excluding payments of any Loans Outstanding) and such failure continues unremedied for three (3) consecutive Business Days, or (ii) failure by the Borrower to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) deliver the Monthly Report on the Reporting Date, and 4.2(c)) such failure continues unremedied for one (1) two Business Day or Days; (iii) failure of the Borrower to pay in full the Loans Outstanding by the Payment Date occurring in the 90th month following the expiration of the latest Commitment Termination Date or to pay any Monthly Principal Payment Amount when the same becomes due and payable pursuant to the terms of the Basic Documents and such failure continues unremedied for one Business Day; (iv) any failure by the Borrower, the Seller or the Performance Guarantor duly to observe or perform or observe any other covenant or agreement (of the Borrower, the Seller or the Performance Guarantor, respectively, set forth in this Agreement or the other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document Basic Documents to which it the Borrower, the Seller or the Performance Guarantor, respectively, is a party party, which failure materially and adversely affects the rights or interests of the Secured Parties and such failure shall continue remains unremedied for fifteen (15) consecutive 30 days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) knowledge thereof by the Borrower, the Seller or the Performance Guarantor, as applicable, or after the date such Originator receives on which written notice of such breach from Buyerfailure shall have been given by the other parties or by the Administrative Agent to the Borrower, the Agent Seller or the Performance Guarantor, as applicable; (v) any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows representation or should have known of such breach.
(b) Any representation, warranty, certification or statement warranty made by the Borrower, the Seller or the Performance Guarantor in any Originator in this Agreement, any other Transaction Basic Document to which it is a party or in any Funding Request, Monthly Report, Quarterly Report or other document report, certificate or notice delivered pursuant thereto to any Basic Document to which it is a party, shall prove to have been false or otherwise incorrect in any material respect when made, deemed made or deemed made delivered, which such false or incorrect representation, warranty or information materially and adversely affects the rights or interests of the Secured Parties and, with respect if able to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is shall not have been cured within ten (10) for 30 days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.on
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors Inc)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event”) shall occur and be continuing:
(a) Any Originator the Borrower or the Servicer shall fail default in the payment of any amount required to be made under the terms of this Agreement; or
(i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) the Borrower shall fail to perform or observe in any covenant contained in Section 4.2 (material respect any other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or other agreement (other than as referred to of the Borrower set forth in clause (i) of this paragraph (a)) under Agreement and any other Transaction Document to which it is a party and such failure shall continue for fifteen party, or (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (Iii) the date such Originator receives notice shall fail to perform or observe in any material respect any term, covenant or agreement of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator set forth in this Agreement, any other Transaction Document to which it is a party or party, in any other document delivered pursuant thereto each case when such failure continues unremedied for more than 20 days after written notice thereof shall prove to have been incorrect in given by the Agent or any material Secured Party to such Person; or
(c) an Insolvency Event shall occur with respect when to the Borrower or the Originator; or
(d) a Servicer Termination Event occurs; or
(e) any representation or warranty made or deemed made andhereunder shall prove to be incorrect as of the time when the same shall have been made, and such incorrect representation or warranty shall not have been eliminated or otherwise cured within a period of 20 days after written notice thereof shall have been given by the Agent or any Secured Party to the Borrower; or
(f) the amount of Advances Outstanding shall exceed the Maximum Availability, for more than three consecutive Business Days; or
(g) an Overcollateralization Shortfall exists and continues unremedied for a period of three Business Days; or
(h) a Required Equity Shortfall exists and continues unremedied for a period of three Business Days; or
(i) the Borrower or the Originator agrees or consents to, or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy in whole or in part that could have a material adverse effect upon the Loans or the interests of the Conduit Lender; or
(j) any Change in Control of the Borrower or Originator occurs; or
(k) on each day during a period of five consecutive days, either (i) the aggregate Hedge Notional Amount is less than the product of the Hedge Percentage on such day and the Hedge Amount on that day, or (ii) any Hedge Transaction fails to meet the requirements set forth in subsection 5.2(a); or
(l) the Trustee on behalf of the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(m) the Rolling Three-Month Portfolio Yield does not equal or exceed 5.0% and such failure continues for a period of 15 consecutive days; or
(n) the Rolling Three-Month Default Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $22,600,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(o) the Rolling Three-Month Charged-Off Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $15,100,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(p) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 15.0%; or
(q) both R▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and T▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(r) the Borrower or the Originator defaults in making any payment required to be made with respect to any material recourse debt or other obligation to which either is a party and such representation, warranty, certification or statement that was so incorrect and which can be cured, default is not cured within ten (10) days after the earlier of (I) relevant cure period or any event or condition shall occur or exist that would cause or permit the date such Originator receives notice acceleration of such breach from Buyerrecourse debt or other obligation, the Agent whether or any Lender Group Agent and (II) the date an Authorized Officer of not such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision event or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement has been waived or any such Indebtedness of an Originator recourse debt or any of its Affiliates other obligation shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.maturity; or
(di) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments judgment for the payment of money in an amount excess of 10% of the Tangible Net Worth of the Originator shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall not have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise during the pendency of such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $50,000,0001,000,000 or $100,000, individually or respectively, in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan settlement of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAlitigation; or
(iit) the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or any rules, regulations or orders issued by the SEC thereunder; or
(u) the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances by the Borrower made by the Conduit Lender, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is beinga party result in a violation by the Originator, the Borrower, or within any other person or entity of the five years preceding 1940 Act or the rules and regulations promulgated thereunder; or
(v) a Material Adverse Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(w) a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the legal conclusions made in the true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; or
(x) the Borrower or its Affiliates shall enter into a binding engagement letter or similar letter of intent with any third party contemplating a structured financing transaction including the Collateral or assets comparable to the Loans included in the Collateral as of any date prior to the date on which the Borrower or its Affiliates shall have consummated (or irrevocably committed to consummate) one or more structured financing transactions in which H▇▇▇▇▇ ▇▇▇▇▇▇▇ or an Affiliate thereof shall act as administrative agent or sole or lead initial purchaser (or in a comparable capacity) representing an aggregate notional amount of at least $250,000,000, if H▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have agreed to negotiate in good faith to offer to the Borrower or its affiliates substantially similar terms for a structured financing transaction comparable to the financing contemplated by such engagement letter or letter of intent (or similar agreement or undertaking); or
(y) Within 30 days after the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) Agent shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 not have received evidence of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion successful completion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability initial public offering of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Patriot Capital.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Termination Events. The occurrence of If any one or more of the following events shall constitute (each a “Termination Event”) shall have occurred:
(ai) Any Originator Seller shall fail (i) to make pay any payment amount due pursuant to Section 9.1 in accordance with the provisions thereof or deposit to pay any other amount required hereunder when due and, for any such payment or deposit which is not in respect of principal, to be paid by Seller and such failure continues shall continue unremedied for three a period of five (35) consecutive Business Days, or ; or
(ii) Seller shall fail to observe or perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement applicable to it contained herein (other than as referred to specified in clause paragraph (i) of this Section 11.1); provided that, no such failure shall constitute a Termination Event under this paragraph (a)ii) under any other Transaction Document to which it is a party and unless such failure shall continue unremedied for fifteen (15) a period of 30 consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.; or
(biii) Any any representation, warranty, certification or statement made or deemed made by any Originator Seller in this Agreement, any other Transaction Document to which it is a party Agreement or in any statement, record, certificate, financial statement or other document delivered pursuant thereto to this Agreement shall prove to have been incorrect in any material respect when made or deemed made andmade, provided that a Termination Event shall not be deemed to have occurred under this paragraph (iii) based upon a breach of any representation or warranty set forth in Section 5.19 if Seller shall have complied with the provisions of Section 9.1 in respect to any such representationthereof; or
(A) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of Seller in an involuntary case under federal or state bankruptcy, warrantyinsolvency or similar law , certification which decree or statement that was so incorrect and which can be cured, order is not cured within ten stayed or any other similar relief shall be granted under any applicable federal or state law now or hereafter in effect and shall not be stayed; (10B) days after the earlier of (I) any involuntary case is commenced against Seller under any federal or state bankruptcy, insolvency or similar law now or hereafter in effect, a decree or order of a court having jurisdiction in the date such Originator receives notice premises for the appointment of such breach from Buyera receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Seller, or over all or a substantial part of the Agent property of Seller, shall have been entered, an interim receiver, trustee or other custodian of Seller for all or a substantial part of the property of Seller is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any Lender Group Agent substantial part of the property of Seller, and (II) the date any event referred to in clause (B)(I) above continues for 60 days unless dismissed, bonded or disclosed; (C) Seller shall at its request have a decree or an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable order for relief entered with respect to it or commence a voluntary case under any representationfederal or state bankruptcy, warrantyinsolvency or similar law now or hereafter in effect, certification or statement that itself contains shall consent to the entry of a decree or an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any materiality thresholdsuch Insolvency Law, including Material Adverse Effect.
consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (cD) Failure the making by Seller of any Originator general assignment for the benefit of creditors; (E) the inability or any failure of its Affiliates Seller generally to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due due; or shall admit in writing its inability (F) the board of directors of Seller authorizes action to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to approve any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAforegoing; or
(iiv) is being, or within there shall have occurred an Event of Default set forth in Section 4.01 of the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAIndenture; or
(iiivi) a notice of Encumbrance shall require such Originator or any of its ERISA Affiliates to provide security have been filed by the Pension Benefit Guaranty Corporation against Seller under Section 401(a)(29412(n) or 412 of the Tax Code or Section 306 302(f) of ERISA for a failure to make a required installment or 307 other payment to a plan to which Section 412(n) of ERISAthe Code or Section 302(f) of ERISA applies unless there shall have been delivered to the Indenture Trustee proof of release of such Encumbrance; or
(vii) any Encumbrance in an amount equal to or greater than $500,000 has been asserted against or imposed on, any real or personal property of Seller pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or any equivalent or comparable state law, relating to or arising from the costs of, response to, or investigation, remediation or monitoring of, any environmental contamination resulting from the current or past operations of Seller; or
(viii) a Federal tax notice of Encumbrance, in an amount equal to or greater than $500,000, shall have been filed against Seller unless there shall have been delivered to the Indenture Trustee proof of release of such Encumbrance then, (A) in the case of any Termination Event described in paragraph (iv), (v), (vi), (vii) or (viii) above the obligation of Buyer to purchase Mortgage Loans from Seller shall thereupon automatically terminate without further notice of any kind, which is hereby waived by Seller, and (B) in the case of any other Termination Event, so long as such Termination Event shall be continuing, Buyer or the Indenture Trustee may terminate Buyer’s obligation to purchase Mortgage Loans from Seller by written notice to Seller (any termination pursuant to this Section 11.1 is herein called an “Early Termination”); provided that in the event of any involuntary petition or proceeding as described in paragraph (iv) results in a liability to above, Buyer shall not purchase Mortgage Loans from Seller unless such Originator involuntary petition or any of its ERISA Affiliates under applicable lawproceeding is dismissed, bonded or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion discharged within 60 days of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability filing of such petition or the Performance Guarantor or any commencement of its Subsidiaries in an aggregate amount in excess of $50,000,000such proceeding.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event” under this Agreement:
(a) Any an Insolvency Event with respect to the Transferor, T-Mobile PCS Holdings (whether or not it shall then be the Servicer), the Initial Purchaser, any Originator or either Performance Guarantor shall fail have occurred;
(b) default in the payment of any Yield owing to any Funding Agent or Owner pursuant to Section 2.8 of this Agreement when the same becomes due and payable and such default shall continue for a period of five (5) Business Days;
(c) default in the payment of any outstanding Net Investment on the Final Payment Date, if and to the extent not previously paid;
(d) default in the performance or observance of (i) to make any payment covenant or deposit required hereunder when due andagreement of the Transferor made in this Agreement for the benefit of the Administrative Agent, for any such payment the Funding Agents or deposit the Owners (other than a covenant or agreement, a default in the performance or observance of which is not elsewhere in respect of principal, such failure continues for three (3) consecutive Business Daysthis Section 7.1 specifically dealt with), or (ii) to perform any representation or observe any covenant contained warranty of the Transferor made in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) this Agreement for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) the benefit of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from BuyerAdministrative Agent, the Agent Funding Agents or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove Owners proving to have been incorrect in any material respect as of the time when made the same shall have been made, which default or deemed made andinaccuracy, with respect to any such representationas applicable, warrantyhas an Adverse Effect on the Administrative Agent, certification the Funding Agents or statement that was so incorrect the Owners and which can be cured, is not cured within ten continues unremedied for fifteen (1015) days after the earlier of (I) the date such Originator receives on which written notice of such breach from Buyerfailure or inaccuracy, the Agent or any Lender Group Agent and (II) the date shall have been given in writing to an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in Transferor by the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; Administrative Agent or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.Funding Agents;
(e) An Event failure on the part of Bankruptcy shall occur with respect to T-Mobile PCS Holdings, the Transferor, the Initial Purchaser, any Originator or the Servicer (as used in this paragraph, the “Breaching Party”) to make any payment, transfer or deposit required by the terms of its Subsidiaries.this Agreement, the Sale and Conveyancing Agreement or the Sale and Contribution Agreement on or before the date such payment, transfer or deposit is required to be made herein or therein and such failure shall continue for a period of five (5) Business Days after written notice to an Authorized Officer of T- 740293053.3 ▇▇▇▇▇▇▇▇ Mobile PCS Holdings and (if different) the applicable Breaching Party, or actual knowledge by an Authorized Officer of T-Mobile PCS Holdings and (if different) the applicable Breaching Party;
(f) A Change of Control shall occur.the Transferor is required to register as an investment company under the Investment Company Act;
(g) One a breach of any covenant of the Transferor, the Initial Purchaser, any Originator or more final judgments the Servicer in this Agreement, the Sale and Conveyancing Agreement or the Sale and Contribution Agreement, as applicable, which breach (i) has an Adverse Effect on the interest of any Funding Agent or any Owner and (ii) continues for a period of fifteen (15) days after the payment date on which written notice of money in an amount in excess of $50,000,000such breach, individually or in requiring the aggregatesame to be remedied, shall be entered against any have been given in accordance with Section 9.3 or to an Authorized Officer of the Transferor, Initial Purchaser, the applicable Originator on claims not covered or the Servicer, as applicable, or after discovery of such breach by insurance an Authorized Officer of the Transferor, Initial Purchaser, the applicable Originator or the Servicer, as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of executionapplicable.
(h) The Internal Revenue Service shall file notice as of a lien pursuant to Section 6323 any date of the Tax Code with regard to any of the Receivablesdetermination, Collections and/or Related Security an Asset Base Deficiency exists, and such lien shall continue until the earlier condition continues unremedied for a period of ten (i10) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.consecutive Business Days;
(i) Any Plan any purchase pursuant to this Agreement shall for any reason cease to create a valid and perfected ownership or security interest in each applicable Transferred Receivable free and clear of any Originator Lien (other than any Lien arising under any Related Document);
(j) either of the Sale and Conveyancing Agreement or the Sale and Contribution Agreement shall no longer be in effect, or any of the Originators or the Initial Purchaser, as applicable, shall fail to perform, in a timely manner, any of its respective ERISA Affiliates:material obligations thereunder or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made thereunder by any of the Originators or the Initial Purchaser, as applicable; or
(ik) the Administrative Agent (for the benefit of the Owners) shall fail to be funded have a first priority perfected security interest in accordance a material portion of the Transferred Assets. For the avoidance of doubt, the five (5) Business Day grace period provided for in the Termination Events described in paragraphs (b) and (e) above shall run contemporaneously with the minimum funding standard required by Section 412 comparable five (5) Business Day grace period relating to the comparable covenant or obligation of the Tax Code Transferor or Section 302 the Servicer, as applicable, to pay, transfer or deposit funds in this Agreement, the Sale and Conveyancing Agreement or the Sale and Contribution Agreement. The Transferor shall deliver to the Administrative Agent, promptly, but in any event within five (5) days after the occurrence of ERISA for any plan year or a waiver Termination Event, written notice in the form of an Officer’s Certificate of the Transferor of such standard Termination Event, its status and what action the Transferor is sought taking or granted proposes to take with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.thereto. 740293053.3 21668437
Appears in 1 contract
Sources: Master Receivables Purchase Agreement (T-Mobile US, Inc.)
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event”:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Daysdue, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.consecutive Business Days;
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party Agreement or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.made;
(c) Failure of any An Originator shall become insolvent or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due they mature or shall admit in writing its inability to pay its debts generally apply for, shall consent to, or shall make acquiesce in the appointment of a general assignment custodian, trustee or receiver of an Originator or for a substantial part of the benefit property thereof or, in the absence of creditors.such application, consent or acquiescence, a custodian, trustee or receiver shall be appointed for an Originator or for a substantial part of the property thereof and shall not be discharged within 30 days;
(d) Any bankruptcy, reorganization, debt arrangement or other proceedings under any bankruptcy or insolvency law shall be instituted by or against an Originator, and, if instituted against an Originator, shall have been consented to or acquiesced in by such Originator, or shall remain undismissed for 30 days, or an order for relief shall have been entered against an Originator, or an Originator shall take any corporate action to approve institution of, or acquiescence in, such a proceeding;
(e) An Event of Bankruptcy Any dissolution or liquidation proceeding shall occur with respect be instituted by or against an Originator and, if instituted against an Originator, shall be consented to any or acquiesced in by such Originator or shall remain for 30 days undismissed, or an Originator shall take any of its Subsidiaries.corporate action to approve institution of, or acquiescence in, such a proceeding;
(f) A judgment or judgments for the payment of money in excess of the sum of $2,000,000 in the aggregate shall be rendered against an Originator and such Originator shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, prior to any execution on such judgments by such judgment creditor, within 30 days from the date of entry thereof, and within said period of 30 days, or such longer period during which execution of such judgment shall be stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(g) The maturity of any indebtedness of an Originator in an aggregate amount of $2,000,000 or more shall be accelerated, or an Originator shall fail to pay any such indebtedness in such amount when due or, in the case of such indebtedness payable on demand, when demanded, or any event shall occur or condition shall exist and shall continue for more than the period of grace, if any, applicable thereto and shall have the effect of causing, or permitting the holder of any such indebtedness or any trustee or other Person acting on behalf of such holder to cause, such indebtedness in such amount to become due prior to its stated maturity or to realize upon any collateral given as security therefore;
(h) Any execution or attachment shall be issued whereby any substantial part of the property of an Originator shall be taken or attempted to be taken and the same shall not have been vacated or stayed within 30 days after the issuance thereof;
(i) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA The occurrence of a Termination Event shall have occurred that, in under the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Purchase Agreement.
Appears in 1 contract
Sources: Receivables Sale Agreement (Patterson Companies, Inc.)
Termination Events. The occurrence of If any one or more of the following events ("Termination Events") shall constitute a Termination Eventoccur:
(a) Any Originator Servicer (if Wackenhut) shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen five Business Days or (15ii) consecutive days Servicer (other than Section 4.2(c), which if Wackenhut) or the Transferor (if not Servicer) shall fail to make any payment or deposit to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.made by it hereunder when due; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by the Transferor, Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement, any other Transaction Document to which it is a party Agreement Document, or in any Periodic Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect if such condition shall be amenable to any remedy, such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within condition shall continue unremedied for a period of ten Business Days after (10i) days after the earlier of (I) the date such Originator receives written notice of such breach from Buyer, thereof by the Agent or any Lender Group Agent and (IIii) the date an Authorized Officer of Transferor, Servicer or such Originator knows has actual knowledge thereof; or
(c) The Transferor, Servicer, Wackenhut or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document, on their respective parts to be performed or observed and any such failure shall remain unremedied for five Business Days after the date on which the Transferor, Servicer, Wackenhut or such Originator knew or should have known of such breachfailure; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(cd) Failure A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of any Originator or any of its Affiliates to pay any Indebtedness when due indebtedness for borrowed money in excess of $50,000,000100,000 of, or guaranteed by, the Transferor, Servicer, Wackenhut, any Originator or of any Affiliate of either thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or any default under any agreement or instrument relating to the purchase of receivables of the Transferor, Wackenhut, any Originator or of any Affiliate of either thereof, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to 61 62 purchase receivables or the right of the Transferor to reinvest in receivables the principal amount paid by any Originator party to such agreement or instrument for interest in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.receivables; or
(e) An Event of Bankruptcy shall occur have occurred and remained continuing with respect to the Transferor, Servicer, Wackenhut any Originator or any Affiliate of its Subsidiaries.any thereof; or
(f) A Change Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by the Transferor to the Agent, prior to the date of Control shall occur.execution and delivery of this Agreement is pending against the Transferor, Servicer, Wackenhut, any Originator or any Affiliate of any thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of clause (i) or (ii), in the opinion of the Agent, is likely to materially adversely affect the financial position or business of the Transferor, Servicer, any Originator or any Affiliate of any thereof or impair the ability of the Transferor or Servicer to perform its obligations under this Agreement; or
(g) One or more final judgments for After any Settlement Date, the payment of money in an amount in excess of $50,000,000, individually or in Aggregate Required Allocations shall exceed the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.Required Allocations Limit; or
(h) The Losses to Liquidations Ratio exceeds 2%; or
(i) Three-Month Default Ratio at any time exceeds 6%; or
(j) Three-Month Dilution Ratio at any time exceeds 2.5%; or
(k) There shall have occurred any event which materially adversely affects the collectibility of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of the Transferor, any Originator or Servicer to collect Pool Receivables or the ability of the Transferor or Servicer to perform hereunder or the warranty in Section 6.1(n) shall not be true at any time; or
(l) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue 62 63 Code with regard to any of the Receivablesassets of the Transferor, Collections and/or Related Security Servicer, the Seller, any Originator or any Affiliate and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within 30 days, or the PBGC Pension Benefit Guaranty Corporation shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivablesassets of the Transferor, Collections and/or Related Security.
(i) Any Plan of any Originator Servicer, the Seller or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAOriginator; or
(iim) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAA Purchase and Sale Termination Event shall have occurred; or
(iiin) The Wackenhut Family shall require such Originator at any time, directly or indirectly, control less than 33 1/3% of the voting securities of the Transferor, the Seller, Servicer or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAOriginator; or
(ivo) results in a liability The Agent on behalf of the Purchaser and the Bank Investors, fail for any reason to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.perfected first priority security interest as described in Section 9.1; or
(jp) An ERISA Event The Aggregate Required Allocations shall have occurred that, in the opinion of at any time exceed the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Allocations Limit.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Wackenhut Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a be “Termination EventEvents” hereunder:
(a) Any Originator shall fail (i) to make Servicer (if LOL or any payment Affiliate is the Servicer) or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) Sub-Servicer shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen (15) consecutive days (other more than Section 4.2(c), which shall be seven (7) daysBusiness Days, or (ii) after Seller or Servicer (if LOL or its Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the earlier case of any other payment or deposit required to be made by it hereunder, within five (I5) the date such Originator receives notice Business Days, of such breach from Buyer, the Agent or any Lender Group Agent when first due and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.payable hereunder; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by Seller, LOL, individually or in its capacity as Servicer, or any Originator other Originator, under or in connection with this Agreement, any other Transaction Document to which it is a party Document, or in any Servicer Report, Monthly Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect but only to any the extent such representationbreached representation or warranty is susceptible to cure, warranty, certification or statement that was so incorrect and which can be cured, is not cured within shall remain uncured for ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of Seller, LOL (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) this Agreement; (ii) any other Transaction Document or (iii) any other material agreement with, or other undertaking in favor of, CoBank or any of its Affiliates the Purchasers, to pay be performed or observed on the part of Seller, LOL or such Originator (as the case may be) and any such failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have been given by the Administrator, CoBank or such Purchaser, as the case may be, to the applicable non-performing party (but, in the case of clause (iii) only, only to the extent such failure would result in the occurrence of a Material Adverse Effect); or
(d) Seller or any Originator shall fail to make any payment in respect of any Indebtedness when due having an aggregate principal (or equivalent) amount in excess of $50,000,0005,000,000, when and as the same shall become due and payable (giving effect to any applicable grace or cure periods); or
(e) Any event or the default by condition occurs that results in any Indebtedness of Seller or any Originator having an aggregate principal (or equivalent) amount in excess of $5,000,000 becoming due prior to its scheduled maturity or that requires the performance of any termprepayment, provision repurchase, redemption or condition contained in Sections 6.01Adefeasance thereof, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit prior to its scheduled maturity; or
(f) There shall occur a Servicer Default; or
(g) This Agreement or any such Indebtedness of an Originator Purchase or any of its Affiliates Reinvestment pursuant to this Agreement shall be declared to be due and payable or required to be prepaid for any reason (other than by a regularly scheduled payment) prior pursuant to the date terms hereof) (i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of maturity thereof.
the Receivable Interest, in each Pool Asset, free and clear of any other Lien or (dii) Any Originator cease to create with respect to the items described in Section 9.1, or any the interest of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment the Administrator (for the benefit of creditors.the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(eh) An Event of Bankruptcy shall occur have occurred and remain continuing with respect to Seller, LOL, or any Originator other Originator; or
(i) The 12-month rolling average Sales Based Dilution Ratio for any Cut-Off Date exceeds ten percent (10%); or
(j) The 12-month rolling average Sales Based Default Ratio for any Cut-Off Date exceeds six percent (6%); or
(k) The monthly Sales Based Default Ratio for any Cut-Off Date exceeds ten percent (10%); or
(l) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(m) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(n) The monthly Sales Based Delinquency Ratio for any Cut-Off Date exceeds ten percent (10%); or
(o) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to LOL or any other Originator, as applicable, whether or not consecutive, any final judgment against the Seller, LOL or any other Originator, or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One their respective properties or more final judgments for the payment of money in an amount in excess of $50,000,000assets, that, individually or in the aggregatetaken together with all other final judgments so undischarged, shall be entered unsatisfied and unstayed against any Originator on claims not covered by insurance such Person or as to which the insurance carrier Persons or any of their respective assets or properties has denied its responsibilitycaused, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without or has a stay reasonable possibility of execution.causing, a Material Adverse Effect; or
(ha) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, (b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, (c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, or (d) LOL is subject to a Change in Control; or
(q) The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivablesassets of Seller, Collections and/or Related Security LOL or any other Originator and such lien Lien shall continue until not have been stayed or bonded in a manner satisfactory in the earlier sole discretion of the Administrator, or released within ten (i10) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBusiness Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivablesassets of Seller, Collections and/or Related Security.
(i) Any Plan of any Originator LOL or any of its respective ERISA Affiliates:
other Originator and such Lien shall not have been released within five (i5) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISABusiness Days; or
(iir) is beingThere shall exist any other event or occurrence that has caused, or within the five years preceding the Closing Datecould reasonably be anticipated to cause, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAa Material Adverse Effect; or
(iiis) shall require such Originator or Seller’s net worth is less than $1,000,000 at any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAtime; or
(ivt) results The Credit Agreement described in a liability to such Originator the definition of “J▇ ▇▇▇▇▇▇ Credit Documents,” or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability replacement credit facility acceptable to the PBGC Administrator, shall have been terminated or a Plan that would have a Material Adverse Effect.shall otherwise cease to be in full force and effect; or
(ju) An ERISA Event shall have occurred that, Any Originator elects at any time not to sell or contribute Receivables to Seller in the opinion accordance with Section 1.2(b) of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods Purchase and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Sale Agreement.
Appears in 1 contract
Termination Events. The occurrence of any one or more Each of the following events shall constitute a “Termination Event”:
(a) Any Originator a Funding Excess shall occur and continue for two Business Days;
(b) the Borrower shall fail to make (i) to make any payment or deposit required hereunder with respect to the outstanding principal balance of any Advance when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, and payable or (ii) any payment of any interest in respect of applicable Advances and Fees, in each case when due and payable, and the same shall remain unremedied for two (2) Business Days or more; or
(i) the Borrower shall fail or neglect to perform perform, keep or observe any requirement or covenant contained set forth in Section 4.2 Sections 5.1(b), 5.2(a) or 5.2(b) of this Agreement, (other than Sections 4.2(aii) and 4.2(c)(A) for one (1) Business Day the Borrower shall fail or (iii) neglect, to perform perform, keep or observe any requirement or covenant set forth in Sections 5.1(c), 5.2(c), 5.2(d) or agreement (other than as referred to in clause (i) 5.3 of this paragraph Agreement or (a)B) under the Parent, Originator or any other Seller shall fail or neglect to perform, keep or observe any similar requirement or covenant in any Transaction Document to which it is a party party, and such failure in either case the same shall continue remain unremedied for fifteen two (152) consecutive days (other than Section 4.2(c), which shall be seven (7) days) Business Days after the earlier date specified for performance of any such requirement or (Iiii) the date such Originator receives notice of such breach from BuyerBorrower, Parent, the Agent Originator or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows Seller shall fail or should have known of such breach.
(b) Any representationneglect to perform, warranty, certification keep or statement made by any Originator in this Agreement, observe any other covenant or other provision of any Transaction Document Documents to which it is a party (other than any provision embodied in or in covered by any other document delivered pursuant thereto clause of this Section 8.1) and the same shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within remain unremedied for ten (10) days after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known Person becoming aware of such breachfailure or neglect and such Person’s receipt of written notice thereof;
(i) a Seller, the Originator, the Borrower, the Servicer or the Parent shall fail to make any payment with respect to any of its Indebtedness which, except with respect to the Borrower, is in an aggregate principal amount in excess of $25,000,000 when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) a default or breach or other occurrence shall occur under any agreement, document or instrument to which the Originator, a Seller, the Borrower, the Servicer or the Parent is a party or by which it or its property is bound (other than a Transaction Document) which relates to Indebtedness which, except with respect to the Borrower, is in an aggregate principal amount in excess of $25,000,000, and the effect of such default, breach or occurrence is to cause or to permit the holder or holders then to cause such Indebtedness to become or be declared due prior to its stated or scheduled maturity; provided that this subsection (d)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness if such sale or transfer is permitted (and would not result in a breach or default) under the documents providing for such Indebtedness;
(e) an involuntary case or proceeding shall have been commenced against the Borrower, one or more Sellers that constitute a Significant Seller Group, the Servicer, the Originator or the Parent seeking a decree or order in respect of any such Person under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so long as the Borrower is not a debtor in any such case or proceedings, such case or proceeding continues for sixty (60) days unless dismissed or discharged; provided, however, that the materiality threshold in the preceding clause such sixty (60) day period shall not be applicable deemed expired immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (e) or (y) any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.of the events described in Section 8.1(f) shall have occurred; or
(cf) Failure the Borrower, the Originator, one or more Sellers that constitute a Significant Seller Group, the Servicer or the Parent shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of any Originator proceedings under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or similar law or to the filing of its Affiliates any petition thereunder or to pay the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any Indebtedness when due such Person or for any substantial part of such Person’s assets, (iii) make a general assignment for the benefit of creditors, or (iv) take any corporate or limited liability company action in excess furtherance of $50,000,000any of the foregoing; or
(g) the Originator, one or more Sellers that constitute a Significant Seller Group, the Borrower, the Parent or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall Servicer generally does not pay its debts as such debts become due or shall admit admits in writing its inability to to, or is generally unable to, pay its debts generally or shall make a general assignment for the benefit of creditors.as such debts become due; or
(eh) An Event of Bankruptcy shall occur with respect to any Originator a final judgment or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,00025,000,000 in the aggregate (net of insurance proceeds) at any time outstanding shall be rendered against the Originator, any Seller, the Servicer or the Parent or any of the Parent’s other subsidiaries and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) such judgment or judgments shall not have been discharged or stayed or bonded pending appeal within 30 days after the entry of such judgment or judgments, or if stayed shall not have been discharged prior to the expiration of such stay; or
(i) a final judgment or judgments for the payment of money shall be rendered against the Borrower; or
(i) any information contained in any Borrowing Base Certificate, Letter of Credit Application or any Borrowing Request (or any representation or deemed representation made in connection therewith) is untrue or incorrect in any respect (other than, in the case of any such information contained in a Borrowing Base Certificate, any Immaterial Misstatement), or (ii) any representation or warranty of the Originator, any Seller, the Servicer, the Parent or the Borrower herein or in any other Transaction Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate, Letter of Credit Application or any Borrowing Request) made or delivered by or on behalf of such Seller, Originator, the Servicer, the Parent or the Borrower to any Affected Party hereto or thereto is untrue or incorrect in any material respect as of the date when made or deemed made (it being understood that such materiality threshold shall not be applicable with respect to any clause of any representation or warranty which itself contains a materiality qualification); or
(k) any Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien (A) with regard to any assets of any Seller, the Originator, the Borrower or the Parent (other than a Lien (i) limited by its terms to assets other than Receivables and (ii) that would not either individually or in the aggregate with any other Liens of any Governmental Authority reasonably be expected to result in a Material Adverse Effect) or (B) with regard to the assets of the Borrower; or
(l) since December 31, 2013, there shall have occurred any events, circumstances, developments or other changes in facts that, individually or in the aggregate, have had a Material Adverse Effect that is continuing; provided, that, (i) regulatory developments that have been publicly disclosed on or prior to the Closing Date and that affect or could reasonably be expected to affect the coal industry generally and (ii) other events or conditions occurring prior to the Closing Date that are particular to the coal industry (including but not limited to coal pricing) and are generally known to lenders lending to coal industry participants, in each case shall not be entered against taken into account for purposes of determining whether a “Material Adverse Effect” has occurred or is continuing pursuant to clause (a) of the definition thereof; or
(m) an Event of Servicer Termination shall have occurred; or
(A) the Borrower shall cease to hold valid and properly perfected title to and sole legal, record and beneficial ownership in any Originator Receivables or any other Borrower Collateral or (B) the Administrative Agent (on claims behalf of the Secured Parties) shall cease to hold a first priority, perfected security interest in any Receivables or any of the Borrower Collateral (other than with respect to the circumstances described in clause (A) and clause (B) above, (w) as a result of security interests of third parties that have been released but, due to administrative error, have not covered been terminated of record, (x) as a result of any release of Borrower Collateral expressly permitted by insurance or this Agreement, (y) as a result of Liens being contested in good faith as to which the insurance carrier Administrative Agent has denied been notified in writing and established a reserve satisfactory to the Administrative Agent in its responsibilitysole and absolute discretion after consultation with the Borrower, and such judgment shall continue unsatisfied and in effect for sixty or (60z) consecutive days without as a stay result of execution.
(h) The Internal Revenue Service shall file notice of a lien Liens created pursuant to Section 6323 of any Transaction Document) and, in relation to the Tax Code with regard to any of the Receivablescircumstances described in clause (A) or clause (B) above, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 Receivables or other Borrower Collateral comprising 1% or less of the Tax Code or Section 303 of ERISABorrowing Base, such circumstances shall exist and remain unremedied for five (5) Business Days following their occurrence; or
(iio) is being, or within the five years preceding the Closing Date, has been, terminated or the subject a Change of termination proceedings under Section 4041(c) of ERISAControl shall occur; or
(iiip) the Borrower shall require such Originator amend its certificate of formation or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAlimited liability company agreement (other than as permitted by this Agreement); or
(q) the Receivables Sale Agreement shall for any reason cease to evidence the transfer to the Borrower of the legal and equitable title to, and ownership of, the Receivables; or
(r) the Sale Agreement shall for any reason cease to evidence the transfer to the Originator of the legal and equitable title to, and ownership of, the Receivables sold thereunder; or
(s) (i) the Defaulted Receivable Trigger Ratio shall exceed 4.0%; (ii) the Delinquency Trigger Ratio shall exceed 4.0%; (iii) the Dilution Trigger Ratio shall exceed 5.0%; or (iv) results the Turnover Days shall exceed 35 days; or
(t) any material provision of any Transaction Document shall for any reason cease to be valid, binding and enforceable in a liability to accordance with its terms (or the Originator, the Servicer, any Seller, the Parent or the Borrower shall challenge the enforceability of any Transaction Document or shall assert in writing, or engage in any action or inaction based on any such Originator or assertion, that any provision of any of the Transaction Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its ERISA Affiliates under applicable law, terms); provided that the expiration or Title IV ERISA termination of any Letter of Credit by its terms (other than as a liability for PBGC premiums due but result of any default or similar event thereunder) shall not delinquent under Section 4007 constitute a Termination Event; or
(u) except as otherwise expressly permitted herein or therein, any Transaction Document shall have been modified, amended or terminated without the prior written consent of ERISAthe Administrative Agent and, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.extent required hereunder, the applicable Lenders;
(jv) An ERISA Event shall have occurred thaton any day, in (i) the opinion Funding Availability Adjusted Amount is less than 15% of the Required LendersMaximum Revolving Commitment Amount as of such day and such condition continues beyond the next Business Day and (ii), when taken together the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries, determined as of the last day of the most recently ended fiscal quarter of the Parent (it being understood that such fiscal quarter and the three prior fiscal quarters shall be the period with all other ERISA Events that have occurred for all periods and are then outstandingrespect to which the Fixed Charge Coverage Ratio is determined), could shall be less than 1.0x;
(w) The occurrence of an Account Control Event described in clause (ii) of the definition thereof;
(x) the occurrence of any Reportable Event with respect to any Plan, to the extent such occurrence would reasonably be expected to result in liability a Material Adverse Effect; or
(y) the Borrower shall have received an Election Notice pursuant to Section 2.1(d) of the Performance Guarantor Receivables Sale Agreement. then, and in any such event, the Administrative Agent may, and shall, at the request of the Requisite Lenders, by written notice to the Borrower, declare the Facility Maturity Date to have occurred without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, that the Facility Maturity Date shall automatically occur upon the occurrence of any of the Termination Events described in Sections 8.1(e) or (f), in each case without demand, protest or any notice of its Subsidiaries any kind, all of which are hereby expressly waived by the Borrower. Upon the occurrence of the Facility Maturity Date, all Borrower Obligations outstanding (or that become outstanding), if any, shall automatically be and become due and payable in an aggregate amount full, without any action to be taken on the part of any Person. In addition, if any Event of Servicer Termination shall have occurred, then, the Administrative Agent may, and shall, at the request of the Requisite Lenders, by delivery of a Servicer Termination Notice to the Borrower and the Servicer, terminate the servicing responsibilities of the Servicer under the Servicing Agreement in excess of $50,000,000accordance with the terms thereof.
Appears in 1 contract
Sources: Credit and Security Agreement (Alpha Natural Resources, Inc.)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator NSI Georgia shall fail (i) to make any payment or deposit required hereunder to be made by it under the Transaction Documents when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three two (32) consecutive Business Days, or .
(iib) NSI Georgia shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive and such failure shall not have been cured within 30 days (other than Section 4.2(c), which shall be seven (7) days) after the earlier to occur of (Ii) written notice thereof has been given to NSI Georgia by the date Buyer or (ii) an Executive Officer otherwise becomes aware of any such Originator receives notice failure; provided, however, that such cure period shall be extended for a period of time, not to exceed an additional 30 days, reasonably sufficient to permit NSI Georgia to cure such breach from Buyerfailure if such failure cannot be cured within the initial 30-day period but reasonably could be expected to be capable of cure within such additional 30 days, NSI Georgia has commenced efforts to cure such failure during the Agent or any Lender Group Agent initial 30-day period and (II) the date an Authorized Officer of NSI Georgia is diligently pursuing such Originator knows or should have known of such breachcure.
(bc) Any representation, warranty, certification or statement made by any Originator NSI Georgia in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator the Parent or any of its Material Subsidiaries.
(fe) A Change of Control shall occur.
(gf) One or more final judgments or orders for the payment of money in an aggregate amount in excess of $50,000,000, individually or in 10% of Stockholders' Equity as of the aggregate, end of the Fiscal Quarter just ended shall be entered rendered against any the Parent, either Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, Buyer and such judgment or order shall continue unsatisfied and in effect unstayed for sixty (60) consecutive days without a stay period of execution30 days.
(hg) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 Either of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator Originators or any of its respective ERISA Affiliates:
(i) Subsidiary shall fail to be funded make any payment in accordance with the minimum funding standard required by Section 412 respect of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries Debt outstanding in an aggregate amount in excess of $50,000,00025,000,000 when due or within any applicable grace period.
(h) Any event or condition shall occur which results in the acceleration of the maturity of Debt outstanding of either of the Originators or any Subsidiary in an aggregate amount in excess of $25,000,000 (including, without limitation, any required mandatory prepayment or "put" of such Debt to such Originator or Subsidiary) or enables (or, with the giving of notice or lapse of time or both, would enable) the holders of such Debt or commitment or any Person acting on such holders' behalf to accelerate the maturity thereof or terminate any such commitment (including, without limitation, any required mandatory prepayment or "put" of such Debt to such Originator or Subsidiary).
(i) The Parent or any member of the Controlled Group shall fail to pay when due any amount in excess of 10% of Stockholders' Equity as of the end of the Fiscal Quarter just ended which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by the Parent, any member of the Controlled Group, any plan administrator or any combination of the foregoing if the amount of liability involved is in excess of 10% of Stockholders' Equity as of the end of the Fiscal Quarter just ended; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter if the amount of liability involved is in excess of 10% of Stockholders' Equity as of the end of the Fiscal Quarter just ended; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated, if the amount involved is in excess of 10% of Stockholders' Equity as of the end of the Fiscal Quarter just ended.
(j) A federal tax lien shall be filed against the Parent, either Originator or Buyer under Section 6323 of the Tax Code or a lien of the PBGC shall be filed against the Parent, either Originator or Buyer under Section 4068 of ERISA and in either case such lien shall remain undischarged for a period of 25 days after the date of filing if the aggregate amount involved is in excess of 10% of Stockholders' Equity as of the end of the Fiscal Quarter just ended.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (National Service Industries Inc)
Termination Events. The occurrence of If any one or more of the following events --------------------------------- shall constitute a Termination Eventoccur:
(a) Any Originator shall fail (i) The failure to make any payment or deposit required hereunder pay when due andany Principal Payment Amount, for any such payment Monthly Funding Costs, any Unused Fees or deposit which is not in respect any Article 14 Costs and the continuation of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) Day; provided, that the failure to perform or observe -------- pay any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is Article 14 Costs shall -82- not constitute a party and Termination Event unless such failure shall continue unremedied for fifteen (15) consecutive 60 days (other than Section 4.2(c), which shall be seven (7) days) after such amount becomes due in accordance with the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.terms hereof; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed made by any Originator in this Agreement, any other Transaction Document to which it is a party the Transferor herein or in any other Basic Document or which is contained in any certificate, document delivered pursuant thereto or financial or other statement furnished at any time under or in connection herewith or therewith shall prove to have been incorrect in any material respect when on or as of the date made or deemed made andmade; or
(c) The Transferor shall default in the observance or performance of any agreement contained in Section 6.2; or -----------
(d) The Transferor shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a) through (c) of this Section) or any other Basic Document, with respect to any and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) default shall continue unremedied for a period of 30 days after the earlier of (I) the date such Originator receives notice on which the Transferor shall have had actual knowledge of such breach from Buyer, the Agent or any Lender Group Agent default and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; providedon which written notice thereof, however, that requiring the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared same to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior remedied, shall have been given to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for Transferor by the benefit of creditors.Administrative Agent; or
(e) An Event One or more judgments or decrees shall be entered against the Transferor involving in the aggregate a liability (not paid or covered by insurance) of Bankruptcy $15,000 or more and all such judgments or decrees shall occur with respect to any Originator not have been vacated, discharged, or any of its Subsidiaries.stayed or bonded pending appeal within 30 days from the entry thereof; or
(f) A Change This Agreement shall cease, for any reason, to be in full force and effect or any of Control the other Basic Documents shall occur.cease, for any reason, to be in full force and effect other than as permitted in accordance with its terms; or
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, A Servicer Default shall have occurred and be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.continuing; or
(h) The Internal Revenue Service A Purchase Termination Event shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security have occurred and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.be continuing; or
(i) Any Plan The Transferor shall become required to register under the Investment Company Act of any Originator or any of its respective ERISA Affiliates:1940, as amended, as an "investment company" (as defined in such act); or
(ij) The Aggregate Net Investment on any Settlement Date shall fail to be funded in accordance with exceed the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted Net Pool Balance with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISASettlement Date; or
(iik) is beingThe failure of the Administrative Agent to have for the ratable benefit of the Purchasers a first priority perfected ownership or security interest in the Transferred Interest, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAother than any True Lease Equipment; or
(iiil) There shall require such Originator have occurred an Insolvency Event with respect to the Transferor, Case Credit, New Holland Credit or any of its ERISA Affiliates CNH Global N.V. or an Involuntary Filing Event with respect to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISATransferor; or
(ivm) results in Case Credit or New Holland Credit shall cease to be a liability to such Originator or any wholly- owned Subsidiary of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.CNH Global N.V.; or
(jn) An ERISA Event On any Settlement Date, the Net Loss Percentage shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.exceed 6%; or
Appears in 1 contract
Sources: Transfer and Administration Agreement (Case Credit Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a be Termination EventEvents (“Termination Events”) hereunder:
(a) Any as of any Determination Date, the Average Portfolio Delinquency Ratio exceeds 5.0%; or
(b) as of any Determination Date, the Average Pool Charged-Off Ratio exceeds 2.0%; or
(c) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 2.5%; or
(d) the Advances Outstanding on any day exceeds the lesser of the Facility Amount and Maximum Availability and the same continues unremedied for two Business Days; provided that during the period of time that such event remains unremedied, no additional Advances or Swingline Advances will be made under this Agreement and any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.10; or
(e) a Servicer Default occurs and is continuing; or
(f) the Facility Termination Date shall have occurred; or
(g) failure on the part of the Seller or Originator shall fail (i) to make any payment or deposit (including without limitation with respect to Collections) required hereunder when due and, for by the terms of any Transaction Document on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or
(h) the occurrence of an Insolvency Event relating to the Originator, the Seller, the Servicer or any Affiliate of the Originator which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) a party to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause a Permitted Securitization Transaction; or
(i) the Seller shall become required to register as an “investment company” within the meaning of this paragraph the Investment Company Act of 1940, as amended or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act; or
(a)j) under a regulatory, tax or accounting body has ordered that the activities of the Seller or any Affiliate of the Seller contemplated hereby be terminated or, as a result of any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyerevent or circumstance, the Agent or any Lender Group Agent and (II) activities of the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document Seller contemplated hereby may reasonably be expected to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after cause the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator Seller or any of its respective Affiliates to pay any Indebtedness when due in excess of $50,000,000suffer materially adverse regulatory, accounting or tax consequences; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.or
(dk) Any Originator there shall exist any event or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make occurrence that has caused a general assignment for the benefit of creditors.Material Adverse Effect; or
(el) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Seller or the Originator and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within five Business Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.assets of the Seller or the Originator and such lien shall not have been released within five Business Days; or
(m) any Change-in-Control shall occur; or
(i) Any Plan of any Originator Transaction Document, or any of its respective ERISA Affiliates:
lien or security interest granted thereunder, shall (i) shall fail to be funded except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the minimum funding standard required by Section 412 legally valid, binding and enforceable obligation of the Tax Code Seller, the Originator, or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; orServicer,
(ii) is beingthe Seller, the Originator, the Servicer or within any other party shall, directly or indirectly, contest in any manner the five years preceding the Closing Dateeffectiveness, has beenvalidity, terminated binding nature or the subject enforceability of termination proceedings under Section 4041(c) of ERISA; any Transaction Document or any lien or security interest thereunder, or
(iii) shall require such Originator any security interest securing any obligation under any Transaction Document shall, in whole or any of its ERISA Affiliates in part, cease to provide be a perfected first priority security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAinterest; or
(ivo) results on any date of determination, the aggregate Hedge Notional Amount in a liability to effect for that day under all Hedge Transactions is less than the product of the Hedge Percentage on such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISAday and the Hedge Amount on that day, and there the same continues unremedied for a period of two Business Days; or
(p) any failure on the part of the Seller or the Originator duly to observe or perform in any material respect any other covenants or agreements of the Seller or the Originator set forth in this Agreement or the other Transaction Documents to which the Seller or the Originator is a party and the same continues unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall result from any such failure, waiver, termination or other event a liability have been given to the PBGC Seller or a Plan that would the Originator by the Administrative Agent and (ii) the date on which the Seller or the Originator becomes aware thereof; or
(q) any representation, warranty or certification made by the Seller or the Originator in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect.Effect on the Secured Parties and which continues to be unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Seller or the Originator by the Administrative Agent and (ii) the date on which the Seller or the Originator becomes aware thereof; or
(jr) An ERISA Event shall have occurred thatany failure by the Seller to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(s) the failure of the Seller, the Servicer or the Originator to make any payment due with respect to recourse debt or other obligations, in the opinion case of the Required LendersServicer or the Originator, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.7,500,000, or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not such event or condition has been waived; or
(1) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess of $7,500,000, individually or in the aggregate, against the Originator, or $2,000,000 against the Seller, individually or in the aggregate, and the Originator shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a be "Termination EventEvents" hereunder:
(ai) Any Originator Servicer (if Feed or any Affiliate is the Servicer) or any Sub-Servicer shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen (15) consecutive days (other more than Section 4.2(c), which shall be seven (7) daysBusiness Days, or (ii) after Seller or Servicer (if Feed or its Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the earlier case of any other payment or deposit required to be made by it hereunder, within five (I5) the date such Originator receives notice Business Days, of such breach from Buyer, the Agent or any Lender Group Agent when first due and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.payable hereunder; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by Seller, Feed, individually or in its capacity as Servicer, or any Originator other Originator, under or in connection with this Agreement, any other Transaction Document to which it is a party Document, or in any Servicer Report, Weekly Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect but only to any the extent such representationbreached representation or warranty is susceptible to cure, warranty, certification or statement that was so incorrect and which can be cured, is not cured within shall remain uncured for ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of Seller, Feed (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) this Agreement; (ii) any other Transaction Document or (iii) any other material agreement with, or other undertaking in favor of, CoBank or any of its Affiliates the Purchasers, to pay any Indebtedness when due in excess be performed or observed on the part of $50,000,000; Seller, Feed or such Originator (as the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or case may be) and any such Indebtedness of an Originator failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have been given by the Administrator, CoBank or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior such Purchaser, as the case may be, to the date of maturity thereof.applicable non-performing party; or
(d) Any Originator There shall occur a Servicer Default; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of its Subsidiaries shall generally not pay its debts as such debts become due the Receivable Interest, in each Pool Asset, free and clear of any other Lien or shall admit (ii) cease to create with respect to the items described in writing its inability to pay its debts generally Section 9.1, or shall make a general assignment the interest of the Administrator (for the benefit of creditors.the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(ef) An Event of Bankruptcy shall occur have occurred and remain continuing with respect to any Originator Seller, Feed, or any of its Subsidiaries.
(f) A Change of Control shall occur.other Originator; or
(g) One The 12-month rolling average Sales Based Dilution Ratio for any Cut-Off Date exceeds twelve percent (12%); or
(h) The 12-month rolling average Sales Based Default Ratio for any Cut-Off Date (i) prior to June 30, 2002, exceeds eight percent (8%), (ii) on or after June 30, 2002 but prior to December 31, 2002, exceeds seven percent (7%) or (iii) on or after December 31, 2002, exceeds six percent (6%); or
(i) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(j) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(k) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to Feed or any other Originator, as applicable, whether or not consecutive, any final judgments for judgment against the payment Seller, Feed or any other Originator, or any of money in an amount in excess of $50,000,000their respective properties or assets, that, individually or in the aggregatetaken together with all other final judgments so undischarged, shall be entered unsatisfied and unstayed against any Originator on claims not covered by insurance such Person or as to which the insurance carrier Persons or any of their respective assets or properties has denied its responsibilitycaused, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without or has a stay reasonable possibility of execution.causing, a Material Adverse Effect; or
(ha) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, (b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, (c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, or (d) LOL is subject to a Change in Control; or
(m) The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivables, Collections and/or Related Security assets of Seller or Feed and such lien Lien shall continue until not have been stayed or bonded in a manner satisfactory in the earlier sole discretion of the Administrator, or released within ten (i10) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBusiness Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivables, Collections and/or Related Security.
assets of Seller or Feed and such Lien shall not have been released within five (i5) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISABusiness Days; or
(iin) is beingThere shall exist any other event or occurrence that has caused, or within the five years preceding the Closing Datecould reasonably be anticipated to cause, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAa Material Adverse Effect; or
(iiio) shall require such Originator or Seller's net worth is less than $1,000,000 at any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAtime; or
(ivp) results Either of the Credit Agreements described in a liability to such Originator the definition of "Chase Credit Documents," or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability replacement credit facility acceptable to the PBGC Administrator shall have been terminated or a Plan that would have a Material Adverse Effect.shall otherwise cease to be in full force and effect; or
(jq) An ERISA Event shall have occurred that, Any Originator elects at any time not to sell or contribute Receivables to Seller in the opinion accordance with Section 1.2(b) of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods Purchase and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Sale Agreement.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues goes unremedied for three two (32) consecutive Business Days, or Days after the date when such amount became due.
(iib) Any Originator shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ia) of this paragraph (a)Section 5.1) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen ten (1510) consecutive days Business Days after either (other than Section 4.2(c), which shall be seven (7i) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Responsible Officer of such Originator knows becomes aware thereof or should have known of (ii) notice thereof to such breachOriginator by the Administrator, any Purchaser Agent or any Purchaser.
(bc) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can continues to be cured, is not cured within false or misleading in any material respect for a period of ten (10) days Business Days after the earlier of either (Ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Responsible Officer of such Originator knows becomes aware thereof or should have known of (ii) notice thereof to such breachOriginator by the Administrator, any Purchaser Agent or any Purchaser; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains a materiality threshold and provided further, that any materiality threshold, including Material Adverse Effectmisrepresentation or certification for which Buyer has actually received a Purchase Price Credit shall not constitute a Termination Event hereunder.
(cd) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000100,000,000 and such failure shall continue beyond the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Indebtedness was created or is governed (and such default shall continue for the applicable grace period, 6.05Aif any, 6.06Aunder the applicable agreement), 6.08Athe effect of which is to cause, 6.11Aor to permit the holder or holders of such Indebtedness to cause, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of an any Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its SubsidiariesOriginator.
(f) A Change AmerisourceBergen shall cease to own and control, directly or indirectly, at least 100% of Control shall occurany Originator.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000100,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty fifteen (6015) consecutive days without a stay of execution.
(h) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in a material adverse effect on the business, financial conditions, operations or properties of Buyer, any Originator or any ERISA Affiliates taken as a whole.
(i) An Amortization Event shall have occurred.
(j) Any Originator becomes unable for any reason to convey or reconvey Receivables in accordance with the provisions of this Agreement.
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivables, Collections and/or Related Security or any assets of Buyer, Originator or any Affiliate and such the lien shall continue until the earlier of (i) not have been released within seven (7) days after inception and (ii) knowledge by any Secured Party of such liendays, or the PBGC shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 or Section 303(k) of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Sale Agreement (Amerisourcebergen Corp)
Termination Events. The occurrence of If any one or more of the following events ("Termination Events") shall constitute a Termination Eventoccur:
(ai) Any Originator Servicer (if Seller or an Affiliate of Seller) shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for two (2) Business Days after notice (which may be by telephone) to Seller if such failure is the failure to deliver a Periodic Report when due or ten (10) Business Days after notice (which may be by telephone) to Seller in all other cases or (ii) Servicer (if Seller or an Affiliate of Seller) or Seller (if not Servicer) shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) Seller or Guarantor shall fail to perform or observe any term, obligation, covenant or agreement contained in Section 7.03 or 7.04 or to furnish to the Administrative Agent, pursuant to Section 7.02(e), a certificate required as a result of knowledge by an Executive Officer of Seller or Guarantor (as applicable) of the occurrence of a Termination Event or an Unmatured Termination Event; or
(i) of this paragraph (a)) under If Seller shall fail to perform or observe any other Transaction term, obligation, covenant or agreement contained herein on its part to be performed or observed (other than in Section 7.03 or 7.04) and any such failure remains unremedied, until the first to occur of the date forty-five (45) days after an Executive Officer of Seller or Guarantor first obtains knowledge, or should have, in the exercise of reasonable diligence, obtained knowledge, thereof or the date thirty (30) days after written notice thereof shall have been given to Seller by the Administrative Agent, (ii) if any representation or warranty made by Seller or Guarantor in this Agreement (other than in Section 6.01(b), 6.01(c), 6.01(e), 6.01(h), 6.02(b), 6.02(c) or 6.02(e)), or in any other Agreement Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c)party, which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect incorrect, incomplete or misleading when made or deemed made andin any material respect, with respect to and any such representationrepresentation or warranty continues to be incorrect, warranty, certification incomplete or statement that was so incorrect and which can be cured, is not cured within ten misleading in any material respect until the first to occur of the date forty-five (1045) days after an Executive Officer of Seller or Guarantor first obtains knowledge, or should have, in the earlier exercise of (I) reasonable diligence, obtained knowledge, thereof or the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and thirty (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (730) days after inception and (ii) knowledge written notice thereof shall have been given to Seller by any Secured Party of such lien, the Administrative Agent or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator any representation or any of its ERISA Affiliates to provide security under warranty made by Seller or Guarantor in Section 401(a)(296.01(b), 6.01(c), 6.01(e), 6.01(h), 6.02(b), 6.02(c) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.6.02
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute be Termination Events (each, a “Termination Event”) hereunder:
(a) Any the Borrower or the Originator shall fail (i) to make defaults in making any payment or deposit required hereunder when due and, to be made under an agreement for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document borrowed money to which it is a party in an aggregate principal amount in excess of $500,000 in the case of the Borrower and $5,000,000 in the case of the Originator and such default is not cured within the applicable cure period, if any, provided for under such agreement; or
(b) any failure shall continue on the part of the Borrower or the Originator duly to observe or perform in any material respect any other covenants or agreements of the Borrower or the Originator set forth in this Agreement or the other Transaction Documents to which the Borrower or the Originator is a party and the same continues unremedied for fifteen (15) consecutive a period of thirty days (other than Section 4.2(c), which shall if such failure can be seven (7) daysremedied) after the earlier to occur of (Ii) the date such Originator receives on which written notice of such breach from Buyer, failure requiring the Agent same to be remedied shall have been given to the Borrower or any Lender Group the Originator by the Administrative Agent and (IIii) the date an Authorized Officer of such on which the Borrower or the Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachacquires knowledge thereof; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure the occurrence of any Originator or any of its Affiliates an Insolvency Event relating to pay any Indebtedness when due in excess of $50,000,000; the Borrower or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.Originator; or
(d) Any Originator or any a Servicer Default (so long as NewStar Financial, Inc. is the Servicer) occurs and is continuing for a period of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for two (2) days after expiration of the benefit of creditors.applicable cure period, if any; or
(e1) An Event the rendering of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One one or more final judgments judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in an amount excess individually or in the aggregate of $7,500,000, against the Originator, or $500,000 against the Borrower, and the Borrower or the Originator, as applicable, shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (2) the Originator or the Borrower shall have made payments of amounts by the Originator in excess of $50,000,0005,000,000, individually or by the Borrower in excess of $500,000, in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan settlement of any Originator litigation, claim or any of its respective ERISA Affiliates:
dispute (i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAexcluding payments made from insurance proceeds); or
(iif) is being, the Borrower shall cease to be an Affiliate of the Originator or within the five years preceding the Closing Date, has been, terminated or the subject shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that reputable counsel of termination proceedings under Section 4041(c) of ERISAnational standing could no longer render a substantive nonconsolidation opinion with respect thereto; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Termination Events. The occurrence of any one or more of the following events and circumstances shall constitute a "Termination Event" for purposes hereof:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) the representations and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement warranties made by any Originator the Company in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Article IV shall prove to have been incorrect on or as of the date made;
(b) the Company shall fail to perform or breach any covenant or agreement contained in any material respect when made this Agreement (other than in the case of the obligations set forth in Section 9.02) and such failure or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten default shall continue unremedied for a period of thirty (1030) consecutive days after written notice shall have been given to the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect Company pursuant to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.Section 9.03;
(c) Failure of any Originator government or governmental authority shall have condemned, nationalized, seized, or otherwise expropriated all or any substantial portion of its Affiliates to pay the assets or property of the Company or any Indebtedness when due in excess of $50,000,000; Significant Subsidiary or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A share capital of the Senior Credit Agreement Company or any Significant Subsidiary, or shall have assumed custody or control of such Indebtedness assets or property or of an Originator the business or operations of the Company or any Significant Subsidiary or of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date share capital of maturity thereof.
(d) Any Originator the Company or any of its Subsidiaries shall generally not pay its debts as such debts become due Significant Subsidiary, or shall admit in writing its inability to pay its debts generally or shall make a general assignment for have taken any action that would prevent the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator Company or any Significant Subsidiary or its officers from carrying on its business or operations or a substantial part thereof for a period of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for longer than sixty (60) consecutive days without and the result of any such action shall materially prejudice the ability of the Company to perform its obligations under this Agreement and, in each case, the Company shall have received written notice thereof from the Representative (at the request of the Requisite Majority of the Participating Impaired Creditors) as to which such event shall, upon such notice, constitute a stay of execution.Termination Event;
(hd) The Internal Revenue Service the Company's shareholders shall file notice fail to approve the filing of a lien pursuant to Section 6323 this Agreement with the Bankruptcy Court within thirty (30) Business Days of the Tax Code with regard to APE Filing Date;
(e) the occurrence of any of the Receivablesevents set forth in Sections 10.08(1), Collections and/or Related Security and such lien shall continue until the earlier of (i2) seven or (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA3); or
(iif) is being, or within the five years preceding Company shall make the Closing Date, has been, terminated or Cash Payment prior to receiving the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectCapital Contribution.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a be termination events (“Termination EventEvents”) hereunder:
(a) Any default by the Borrower in the payment of any amount due and payable pursuant to Section 2.7(a)(iii), and such default shall continue for a period of five (5) days or more; or
(b) default by the Borrower in the payment of the principal of or any installment of the principal when it becomes due and payable on the Final Scheduled Payment Date; or
(c) the aggregate amount of Capital exceeds, for a period of two (2) Business Days or more, the product of the Net Advance Rate and the Collateral Amount; or
(d) failure on the part of the Borrower or the Originator shall fail (i) to make any payment or deposit required hereunder when due and, for by the terms of any such payment Transaction Documents; or
(e) failure on the part of the Borrower or deposit which is not the Originator in any material respect to observe or perform any of principal, such failure continues for three (3) consecutive Business Days, its covenants or (ii) to perform agreements set forth in this Agreement or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure continues unremedied for more than forty-five (45) Business Days after written notice to the Borrower or the Originator (or ninety (90) days if necessary to remedy such default); or
(f) any representation or warranty made or deemed to be made by the Borrower or the Originator under or in connection with any of the Transaction Documents or any information required to be given by the Borrower or the Originator to identify Loans or Contracts pursuant to any Transaction Document, shall continue prove to have been false or incorrect in any material respect when made, deemed made or delivered, and such failure continues unremedied for fifteen more than forty-five (1545) consecutive days (other than Section 4.2(c), which shall be seven or ninety (790) daysdays if necessary to remedy such default) after the earlier of (Ix) the date on which the Borrower or Credit Acceptance discovers such Originator breach or (y) the date on which the Borrower or Credit Acceptance receives written notice of such breach from Buyerbreach; or
(g) the occurrence of an Insolvency Event relating to the Originator, the Agent Borrower or the Servicer; or
(h) the Borrower shall become an “investment company” or require registration as an “investment company” within the meaning of the Investment Company Act; or
(i) a regulatory, tax or accounting body has ordered that the activities of the Borrower or any Lender Group Agent and Affiliate of the Borrower contemplated hereby be terminated or may reasonably be expected to cause the Borrower or any Affiliate to suffer materially adverse regulatory, accounting or tax consequences; or
(IIj) the date an Authorized Officer Borrower, the Servicer or Credit Acceptance shall enter into any merger, consolidation or conveyance transaction, unless in the case of such Originator knows Credit Acceptance or should have known of such breach.the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(bk) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove the Collateral Agent ceases to have a valid and perfected first priority security interest in a material portion of the Collateral and such failure has not been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured remedied within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from BuyerBusiness Days; provided that, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A portion of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit Collateral in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, Collateral Agent does not have a valid and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 perfected first priority security interest will be material if the outstanding balance of the Tax Code with regard to any related Contracts exceeds 3% of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier Aggregate Outstanding Eligible Loan Balance of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAall Eligible Contracts; or
(iil) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAany Change-in-Control shall occur; or
(iiim) shall require such Originator or cumulative Collections are less than 65% of Credit Acceptance's cumulative Forecasted Collections for any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectthree consecutive Collection Periods.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. The occurrence of any one or more Any of the following events acts or occurrences shall constitute a Termination Event under this Agreement (each, a “Termination Event:”):
(a) Any Originator The Servicer shall fail (i) to make deposit to the Collateral Account any Asset Pool Proceeds received by the Servicer as and when required in accordance with this Agreement, or the Servicer shall fail to pay to the Lender any payment or deposit in the amount and on the date required hereunder when due andto be made in accordance with this Agreement, for and any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for more than two (2) Business Days;
(b) The Servicer shall fail to observe or perform in any respect any covenant or agreement required to be performed thereby under this Agreement or under any other Loan Document to which the Servicer is a party, and the continuance of such default or breach for a period of fifteen (15) consecutive calendar days (other than Section 4.2(c), which shall after there has been given to the Servicer a written notice specifying the default or breach and requiring it to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.remedied;
(bc) Any representation, warranty, certification warranty or statement of the Servicer made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Agreement shall prove to have been incorrect in any material respect when made respect, or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification warranty or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement Servicer in any certificate, report or other statement, in writing or orally, delivered to any party hereto and pursuant hereto or thereto, shall not satisfy the standard applicable to such Indebtedness representation or warranty as set forth in Section 5.1(k) of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.this Agreement;
(d) Any Originator The Servicer or any of its Subsidiaries MCM Capital Group shall generally not pay its debts as such debts be or become due insolvent, or shall admit in writing its inability to pay its debts generally as they mature, or shall make a general assignment for the benefit of creditors.; or the Servicer or MCM Capital Group shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or consent of the Servicer or MCM Capital Group and shall not be discharged within sixty (60) days of appointment; or the Servicer or MCM Capital Group shall institute (by petition, application, answer , consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any .jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer or MCM Capital Group; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Servicer or MCM Capital Group and such shall remain unstayed or undismissed for sixty (60) days;
(e) A voluntary petition naming the Servicer or MCM Capital Group, as debtor, is filed under the United States Bankruptcy Code, or an involuntary petition naming the Servicer or MCM Capital Group, as debtor, is filed under the United States Bankruptcy Code and such involuntary petition shall remain undismissed for sixty (60) days;
(f) An Event of Bankruptcy Default as specified in the Credit Agreement shall exist and shall not have been remedied to the written satisfaction of the Lender or waived in writing by the Lender;
(g) A material adverse change shall occur in the financial, business or operational condition of the Servicer or MCM Capital Group as compared to the status of the Servicer or MCM Capital Group as of the date of this Agreement, which material adverse change materially impacts the ability of the Servicer or MCM Capital Group to perform its obligations under any Loan Document to which it is a party;
(h) Any Reportable Event, which the Lender determines in good faith might constitute grounds for the termination of any Plan or for the appointment by the appropriate United States District Court of a trustee to administer any Plan, shall have occurred and be continuing thirty (30) days after written notice, to such effect shall have been given to the Servicer or MCM Capital Group by the tender; or any Plan shall have been terminated, or a trustee shall have been appointed by an appropriate United States District Court to administer any Plan, or the Pension Benefit Guaranty Corporation shall have instituted proceedings to terminate any Plan or to appoint a trustee to administer any Plan;
(i) The Servicer or MCM Capital Group shall liquidate, dissolve, terminate or suspend its business operations or otherwise tail to operate its business in the ordinary course;
(j) The Servicer or MCM Capital Group shall sell, lease, assign, transfer or otherwise dispose of all or a substantial part of its assets (whether in one transaction or in a series of transactions) which materially and adversely affects the Loan Collateral or the ability of the Servicer or MCM Capital Group to perform its obligations under the Loan Documents to which it is a party;
(k) The Servicer or MCM Capital Group shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax or tax deficiency which is being contested in good faith and by proper proceedings and for which it shall have set aside on its books adequate reserves therefor) or notice of any state or federal tax liens shall be tiled or issued (other than with respect to any Originator taxes or any of tax deficiencies which are being contested in good faith and by proper proceedings and for which it shall have set aside on its Subsidiaries.books adequate reserves therefor);
(fl) A continuing default in the payment of $100,000 or more under any note, agreement or other evidence of indebtedness or similar obligation of the Servicer (other than a default whose breach is elsewhere in this Section 6.1 specifically dealt with) or under any instrument under which such evidence of indebtedness or similar obligation has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified in such evidence of indebtedness or other instrument;
(m) A Change of Control shall occur.;
(gn) One A Change of Key Management shall occur at a time when the aggregate outstanding principal balance of the Loans is $20,000,000 or more and one hundred eighty (180) days shall have passed after the occurrence of such Change of Key Management; Provided, however, if a Change of Key Management involves only either ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III or ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (and not both ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇), then such Change of Key Management shall not be an Event of Default if, within the above-described 180-day period, a new officer shall be employed to replace ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III or ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, as applicable, which new replacement officer is reasonably acceptable to the Lender;
(o) As of the last day of any two (2) consecutive Test Periods (excluding the two (2) Test Periods immediately following the Borrowing Date for the initial Loan made under this Agreement), the actual Asset Pool Proceeds received and distributed pursuant to Section 2.8 of the Credit Agreement as of the last day of such two (2) Test Periods for all Asset Pools (on a combined basis) is less than eighty-five percent (85%) of the Asset Pool Proceeds projected to be collected by the Borrower and distributed pursuant to Section 2.8 of the Credit Agreement for such Asset Pools ( on a combined basis) as of the last day of such two (2) Test Periods in the bid packages submitted by the Borrower as a part of the Accepted Borrowing Requests for such Asset Pools;
(p) The rendering against the Servicer or MCM Capital Group of a final judgments judgment, decree or order for the payment of money in an amount excess of $250,000 (unless the payment of such judgment in excess of $50,000,000, individually 250,000 is fully waived) which materially and adversely affects the ability of the Servicer or in MCM Capital Group to perform its obligations under the aggregate, shall be entered against any Originator on claims not covered by insurance or as Loan Documents to which the insurance carrier has denied its responsibility, it is a party and such judgment shall continue judgment, decree or order remains unsatisfied and in effect unstayed for more than sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAdays; or
(q) Any of the following shall occur: (i) entry of a court order which enjoins, restrains or in any way prevents the Servicer or MCM Capital Group from conducting all or any material part of its business affairs in the ordinary course of business, or (ii) is beingwithdrawal or suspension of any license required for the conduct of any material part of the business of the Servicer or MCM Capital Group, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 assets of the Tax Code Servicer or Section 306 MCM Capital Group having a fair market value of $500,000 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, more in the opinion of the Required Lendersaggregate are subject to an order or writ granting a motion or action to replevy, when taken together with all other ERISA Events that have occurred for all periods and are then outstandingsequester, could reasonably be expected to result in liability of the Performance Guarantor garnish, attach or any of its Subsidiaries in an aggregate amount in excess of $50,000,000levy against such assets.
Appears in 1 contract
Termination Events. The occurrence of If and in the event any one or more of the following events shall constitute a Termination Eventoccur:
a. Without the prior approval of the Lessor, the interest of the Lessee under this Lease Agreement shall be transferred to, passed to, or devolved upon any other person, firm, corporation, agency or entity, with the express approval of Lessor as set forth in Paragraph 12; or,
b. 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, a receiver, trustee or liquidator shall take possession of all or substantially all of the property of the Lessee, and such possession or control shall continue in effect for a period of thirty (a30) days; or,
c. The Lessee shall voluntarily abandon, desert or vacate the Premises, or after exhausting or abandoning any right or further appeal, the Lessee shall be prevented for a period of ninety (90) days by action of any governmental agency from using the Premises, regardless of the fault of the Lessee; or,
d. Any Originator enforceable lien shall be filed against the leased Premises because of any act or omission of the Lessee and shall not be discharged, or contested by the Lessee in good faith by proper legal proceeding, within one hundred twenty (120) days; or,
e. The Lessee shall cease, fail or refuse to use the leased Premises as and for the purposes described in Paragraph 5; or,
f. The Lessee shall fail (i) to make any payment or deposit required hereunder when due andkeep, for any such payment or deposit which is not perform and observe each and every other promise, covenant and agreement set forth in respect of principalthis Lease Agreement on its part to be kept, such failure continues for three (3) consecutive Business Daysperformed, or observed, within ninety (ii90) days after its receipt of written notice of default thereunder from the Lessor, except where fulfillment of its obligation requires activity over a period of time, and the Lessee shall have commenced in good faith to perform or observe any covenant contained in Section 4.2 whatever may be required to fulfillment within ninety (other than Sections 4.2(a90) days after receipt of notice and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and continues such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c)performance without interruption; then Lessor shall, which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within upon giving ten (10) days after written notice thereof to Lessee, have the earlier option to terminate this Lease Agreement and all of (I) the date such Originator receives rights of Lessee hereunder. The Lessor shall, as an additional remedy upon the giving of notice of such breach from Buyertermination as provided in this section, have the Agent right to re-enter said leased Premises and every part thereof upon the effective date of termination without further notice of any kind, and may regain and resume possession either with or without the institution of summary or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows other legal proceedings or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectotherwise.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Lease Agreement
Termination Events. The occurrence of any one or more Each of the following events shall constitute shall, upon the occurrence and continuance thereof, be a "Termination Event":
(a) Any Originator The Seller shall fail (i) to make any payment payment, transfer or deposit as required hereunder to be made hereunder, under the Fee Letter or under any other Principal Agreement when due and, for any such payment or deposit which is not in respect of principal, and such failure continues shall remain unremedied for three a period of five (35) consecutive Business Dayscalendar days after the due date; or
(b) Any representation or warranty made or deemed to be made by the Seller or any Performance Guarantor or any of their respective officers under or in connection with this Agreement or any other Principal Agreement or other information or report delivered pursuant hereto or thereto shall prove to have been false, misleading or incorrect in any material respect when made; provided that any breach of a representation and warranty in Section 6.02 with respect to a Mortgage Loan as of the related Purchase Date shall not constitute a Termination Event if the Seller complies with its repurchase obligation set forth in Section 2.04(c) with respect to such Mortgage Loan; or
(iic) The Seller or any Performance Guarantor shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material term, covenant or agreement contained in this Agreement or any other Principal Agreement (other than as referred to in clause (i) of this paragraph (aSection 8.01(a)) under on its part to be performed or observed and any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after remain unremedied beyond the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure expiration of any Originator applicable grace or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000notice period expressly provided for therein; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.or
(d) Any Originator The Seller, Servicer or any of its Subsidiaries Performance Guarantor generally shall generally not pay its debts as such debts they become due or shall admit in writing its inability to pay its debts generally debts, or shall make a general assignment for the benefit of creditors.; or
(e) The Seller, Servicer or any Performance Guarantor shall (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor or liquidator of it or of all or a substantial part of its assets; (ii) file a voluntary petition in bankruptcy, (iii) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any Debtor Laws, (iv) file an answer admitting the allegations of or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding, or (v) take action for the purpose of effecting any of the foregoing; or
(f) An Event involuntary petition or complaint shall be filed against the Seller, the Servicer, or any Performance Guarantor seeking bankruptcy or reorganization of Bankruptcy the Seller, the Servicer, or any Performance Guarantor or a receiver, custodian, trustee, intervenor or liquidator shall occur be appointed for all or substantially all of the assets of either the Seller, the Servicer or any Performance Guarantor; or an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition or complaint seeking reorganization of the Seller, the Servicer or any Performance Guarantor or appointing a receiver, custodian, trustee, intervenor or liquidator of the Seller, the Servicer or any Performance Guarantor or of all or substantially all of the assets of the Seller, the Servicer or any Performance Guarantor; or
(i) The Seller, the Servicer or any Performance Guarantor shall fail to make when due and payable or within any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any payment on any Indebtedness with an unpaid principal balance of over $1,500,000 with respect to the Seller or the Servicer, or $10,000,000 in the case of either Performance Guarantor; or (ii) any event or condition occurs under any provision contained in any such obligation or any agreement securing or relating to such obligation (or any other breach or default under such obligation or agreement occurs) if the effect thereof is to cause or permit with the giving of notice or lapse of time or both the holder or trustee of such obligation to cause such obligation to become due prior to its stated maturity; or (iii) any such obligation becomes due (other than by regularly scheduled payments) prior to its stated maturity; or (iv) any of the foregoing occurs with respect to any Originator one or more items of Indebtedness with an unpaid principal balance exceeding, in the aggregate, $1,500,000 with respect to the Seller or the Servicer, or $10,000,000 in the case of either Performance Guarantor; or
(h) The Seller, Servicer or any of its Subsidiaries.
(f) A Change of Control Performance Guarantor shall occur.
(g) One or more fail within 30 days to timely appeal any final judgments or to pay, bond or otherwise discharge any judgments or orders for the payment of money in an amount each case in excess of $50,000,0005,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.; or
(i) Any Plan of any Originator Person shall levy on, seize or attach all or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 material portion of the Tax Code assets of the Seller, the Servicer or Section 302 of ERISA for any plan year Performance Guarantor and within thirty (30) days thereafter the Seller, the Servicer or a waiver the Performance Guarantor shall not have dissolved such levy or attachment, as the case may be, and, if applicable, regained possession of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAseized assets; or
(iij) is beingThe Seller or the Servicer becomes ineligible to originate, sell or service mortgage loans to FNMA, FHLMC or GNMA, or within FNMA, FHLMC or GNMA shall impose any sanctions upon or terminate or revoke any rights of the five years preceding the Closing Date, has been, terminated Seller or the subject of termination proceedings under Section 4041(c) of ERISAServicer; or
(iiik) shall require If (i) any Governmental Authority cancels the Seller's right to be either a seller or servicer of such Originator Governmental Authority's insured or guaranteed mortgage loans or mortgage-backed securities, (ii) any of its ERISA Affiliates to provide security under Section 401(a)(29) Approved Takeout Investor cancels for cause any servicing or 412 of underwriting agreement between the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to Seller and such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan Approved Takeout Investor that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result have a Material Adverse Effect or (iii) the Seller receives notice from a Governmental Authority that such Governmental Authority intends to revoke such Seller's right to be a seller or servicer of such Governmental Authority's insured or guaranteed mortgage loans or mortgage-backed securities and such notice is not withdrawn within ten (10) days of the receipt thereof; or
(l) Any material provision of this Agreement, or any other Principal Agreement shall for any reason cease to be in liability full force and effect, or be declared null and void or unenforceable in whole or in part; or the validity or enforceability of any such document shall be challenged or denied; or
(m) A "change in control," with respect to the ownership of AHMIC shall have occurred after the date hereof (and as used in this subparagraph, the term "change in control" shall mean an acquisition by any Person, partnership or group, as defined under the Securities Exchange Act of 1934, as amended, of a direct or indirect beneficial ownership of 10% or more of the then-outstanding voting stock of the Performance Guarantor Guarantors); or AHMIC shall cease at any time to own directly or indirectly 100% of its Subsidiaries in an aggregate amount in excess the stock of $50,000,000.the Seller and the Servicer; or
Appears in 1 contract
Sources: Mortgage Loan Purchase and Sale Agreement (American Home Mortgage Investment Corp)
Termination Events. The occurrence of If any one or more of the following events ("TERMINATION EVENTS") shall constitute a Termination Eventoccur:
(a) Any Originator Servicer (if Wackenhut) shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause CLAUSE (iII) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen five Business Days or (15ii) consecutive days Servicer (other than Section 4.2(c), which if Wackenhut) or the Transferor (if not Servicer) shall fail to make any payment or deposit to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.made by it hereunder when due; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by the Transferor, Servicer or any Originator (or any of their respective officers) under or in connection with this Agreement, any other Transaction Document to which it is a party Agreement Document, or in any Periodic Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect if such condition shall be amenable to any remedy, such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within condition shall continue unremedied for a period of ten Business Days after (10i) days after the earlier of (I) the date such Originator receives written notice of such breach from Buyer, thereof by the Agent or any Lender Group Agent and (IIii) the date an Authorized Officer of Transferor, Servicer or such Originator knows has actual knowledge thereof; or
(c) The Transferor, Servicer, Wackenhut or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document, on their respective parts to be performed or observed and any such failure shall remain unremedied for five Business Days after the date on which the Transferor, Servicer, Wackenhut or such Originator knew or should have known of such breachfailure; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(cd) Failure A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of any Originator or any of its Affiliates to pay any Indebtedness when due indebtedness for borrowed money in excess of $50,000,000100,000 of, or guaranteed by, the Transferor, Servicer, Wackenhut, any Originator or of any Affiliate of either thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or any default under any agreement or instrument relating to the purchase of receivables of the Transferor, Wackenhut, any Originator or of any Affiliate of either thereof, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of the Transferor to reinvest in receivables the principal amount paid by any Originator party to such agreement or instrument for interest in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.receivables; or
(e) An Event of Bankruptcy shall occur have occurred and remained continuing with respect to the Transferor, Servicer, Wackenhut any Originator or any Affiliate of its Subsidiaries.any thereof; or
(f) A Change Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by the Transferor to the Agent, prior to the date of Control shall occur.execution and delivery of this Agreement is pending against the Transferor, Servicer, Wackenhut, any Originator or any Affiliate of any thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Agent, is likely to materially adversely affect the financial position or business of the Transferor, Servicer, any Originator or any Affiliate of any thereof or impair the ability of the Transferor or Servicer to perform its obligations under this Agreement; or
(g) One or more final judgments for After any Settlement Date, the payment of money in an amount in excess of $50,000,000, individually or in Aggregate Required Allocations shall exceed the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.Required Allocations Limit; or
(h) The Losses to Liquidations Ratio exceeds 2%; or
(i) Three-Month Default Ratio at any time exceeds 6%; or
(j) Three-Month Dilution Ratio at any time exceeds 2.5%; or
(k) There shall have occurred any event which materially adversely affects the collectibility of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of the Transferor, any Originator or Servicer to collect Pool Receivables or the ability of the Transferor or Servicer to perform hereunder or the warranty in SECTION 6.1(N) shall not be true at any time; or
(l) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivablesassets of the Transferor, Collections and/or Related Security Servicer, the Seller, any Originator or any Affiliate and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within 30 days, or the PBGC Pension Benefit Guaranty Corporation shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivablesassets of the Transferor, Collections and/or Related Security.
(i) Any Plan of any Originator Servicer, the Seller or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAOriginator; or
(iim) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAA Purchase and Sale Termination Event shall have occurred; or
(iiin) The Wackenhut Family shall require such Originator at any time, directly or indirectly, control less than 33 1/3% of the voting securities of the Transferor, the Seller, Servicer or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAOriginator; or
(ivo) results in a liability The Agent on behalf of the Purchaser and the Bank Investors, fail for any reason to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.perfected first priority security interest as described in SECTION 9.1; or
(jp) An ERISA Event The Aggregate Required Allocations shall have occurred that, in the opinion of at any time exceed the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Allocations Limit.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Wackenhut Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a be Termination EventEvents (“Termination Events”) hereunder:
(a) Any the Borrower or the Originator shall fail defaults in making any payment required to be made under an agreement for borrowed money to which it is a party in an aggregate principal amount in excess of $500,000 in the case of the Borrower and $5,000,000 in the case of the Originator and such default is not cured within the applicable cure period, if any, provided for under such agreement; or
(b) any failure on the part of the Borrower or the Originator duly to observe or perform in any material respect any other covenants or agreements of the Borrower or the Originator set forth in this Agreement or the other Transaction Documents to which the Borrower or the Originator is a party and the same continues unremedied for a period of thirty days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Originator by the Administrative Agent and (ii) the date on which the Borrower or the Originator acquires knowledge thereof; or
(c) the occurrence of an Insolvency Event relating to the Borrower; or
(d) the occurrence of a Servicer Default; or
(e) (i) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $7,500,000, against the Originator, or $500,000, against the Borrower, and the Borrower or the Originator, as applicable, shall not have either (A) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (B) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (ii) the Originator or the Borrower shall have made payments of amounts by the Originator in excess of $7,500,000, or by the Borrower in excess of $500,000, in the settlement of any litigation, claim or dispute (excluding payments made from insurance proceeds); or
(i) any Transaction Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Originator, or the Servicer,
(ii) the Borrower, the Originator, the Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any lien or security interest thereunder, or
(iii) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a perfected first priority security interest except as otherwise expressly permitted hereby or otherwise to be released in accordance with the applicable Transaction Document; or
(g) the Advances Outstanding on any day exceeds the lesser of the Facility Amount and Borrowing Base and the same continues unremedied for three Business Days; provided that during the period of time that such event remains unremedied, no additional Advances will be made under this Agreement and any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.8; or
(h) on any date of determination, the aggregate Hedge Notional Amount in effect for that day under all Hedge Transactions is less than the Hedge Amount on that day, and the same continues unremedied for a period of 15 calendar days; or
(i) the Aggregate Unpaids remain outstanding following the third anniversary of the last day of the Revolving Period; or
(j) failure on the part of the Borrower or Originator to make any payment or deposit (including with respect to bifurcation and remittance of Collections or any other payment or deposit required hereunder when due andto be made hereunder, for including to any Secured Party, Affected Party or Indemnified Party) required by the terms of any Transaction Document on the day such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to made and the date of maturity thereof.same continues unremedied for two Business Days; or
(dk) Any Originator the Borrower or any the pool of its Subsidiaries Collateral shall generally not pay its debts become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.registration; or
(el) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Borrower or the Originator and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within five Business Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivablesassets of the Borrower, Collections and/or Related Security.the Originator or any ERISA Affiliate thereof and such lien shall not have been released within five Business Days; or
(m) any Change-in-Control shall occur; or
(n) any representation, warranty or certification made by the Borrower or the Originator in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect on the Secured Parties and which continues to be unremedied for a period of 30 days after the earlier to occur of (i) Any Plan the date on which written notice of any such incorrectness requiring the same to be remedied shall have been given to the Borrower or the Originator by the Administrative Agent and (ii) the date on which a Responsible Officer of the Borrower or any the Originator acquires knowledge thereof; or
(o) the Asset-to-Debt Ratio of its respective ERISA Affiliates:
the Borrower is (i) shall fail less than 115% during the 12 months immediately following the termination of the Revolving Period and (ii) less than 125% thereafter; or
(p) the failure of the Originator to be funded fund any unfunded commitments pursuant to a Revolving Loan or Delayed Draw Term Loan (other than in the case of administrative errors, acts of God or other events beyond the Originator’s control), but only to the extent the Originator is obligated to fund such unfunded commitments (or in good faith disputes its obligation to fund such unfunded commitments) in accordance with the minimum funding standard required by Section 412 related Underlying Instruments, subject to any applicable grace periods set forth in the applicable Underlying Instruments; provided that the Originator shall have given notice to the Administrative Agent of the Tax Code or Section 302 of ERISA for any plan year or a waiver its failure to fund such commitments within 5 days of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAfailure; or
(iiq) is being, or within The Originator shall fail to maintain total excess liquidity (cash plus unused capacity in all debt facilities) sufficient to fund the five years preceding the Closing Date, has been, terminated or the subject Originator’s portion of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require committed revolving credit facilities if such Originator or any of its ERISA Affiliates facilities were drawn to provide security under Section 401(a)(29) or 412 66% of the Tax Code or Section 306 or 307 of ERISAaggregate committed amount, excluding those facilities for which the Originator is not obligated to fund such commitments; or
provided that the excess liquidity (ivcash plus unused capacity in all debt facilities) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectwill at all times be at least $25,000,000.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to an Originator:
(ai) Any Such Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment on or deposit within one (1) Business Day after the date on which the same is not in respect of principal, such failure continues for three (3) consecutive Business Days, or required to be made.
(ii) Such Originator or Performance Guarantor shall fail to perform or observe any covenant contained in Section 4.1(l) or any provision of Section 4.2 (other than Sections 4.2(a) and Section 4.2(c).
(i) for one (1) Business Day Such Originator or (iii) Performance Guarantor shall fail to perform or observe any covenant other covenant, agreement or agreement other obligation hereunder (other than as referred to in clause (i) another paragraph of this paragraph (a)Section 5.1) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen three (153) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days following the earlier to occur of (Ii) notice from Buyer (or the Administrative Agent or any Purchaser, as its collateral assignee) of such non-performance or non-observance, or (ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized on which a Responsible Officer of such Originator knows (or should have known Performance Guarantor, as the case may be) otherwise becomes aware of such breachnon-performance or non-observance.
(biv) Any representation, warranty, certification or statement made by any such Originator in this Agreement, any other Transaction Document to which it is a party or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with in any material respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten five (105) days after Business Days following the earlier to occur of (Ii) notice from Buyer (or the Administrative Agent or any Purchaser, as its collateral assignee) of such inaccuracy, or (ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized on which a Responsible Officer of such Originator knows (or should have known Performance Guarantor, as the case may be) otherwise becomes aware of such breach; providedinaccuracy, however, provided that the materiality threshold in the preceding clause this subsection shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effectthreshold although the five (5) Business Day cure period shall continue to apply.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(dv) Any Originator shall default, or the Performance Guarantor or any of its Subsidiaries (other than an Originator) shall default, in the payment when due of any principal or of or interest on any Material Indebtedness; or any event or condition shall occur which results in the acceleration of the maturity of any such Material Indebtedness.
(i) Such Originator, Performance Guarantor or any of their respective Significant Subsidiaries (as defined in the RPM Credit Agreement) shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against such Originator, Performance Guarantor or any of their respective Significant Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the 765800784 14448925 19 4871-5521-5052, v.3 appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) such Originator, Performance Guarantor or any of their respective Significant Subsidiaries shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (f).
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(fvii) A Change of Control shall occuroccur with respect to such Originator or Performance Guarantor.
(gviii) One or more final judgments for the payment of money in an amount in excess of $50,000,00075,000,000, individually or in the aggregate, shall be entered against any such Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty ten (6010) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Purchase Agreement (RPM International Inc/De/)
Termination Events. The occurrence of any one or more of the following events shall constitute a be “Termination EventEvents” hereunder:
(ai) Any Originator Servicer (if LOL or any Affiliate is the Servicer) or any Sub-Servicer shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen (15) consecutive days (other more than Section 4.2(c), which shall be seven (7) daysBusiness Days, or (ii) after Seller or Servicer (if LOL or Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the earlier case of any other payment or deposit required to be made by it hereunder, within five (I5) the date such Originator receives notice Business Days, of such breach from Buyer, the Agent or any Lender Group Agent when first due and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.payable hereunder; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by Seller, LOL, individually or in its capacity as Servicer, or any Originator other Originator, under or in connection with this Agreement, any other Transaction Document to which it is a party Document, or in any Servicer Report, Monthly Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect but only to any the extent such representationbreached representation or warranty is susceptible to cure, warranty, certification or statement that was so incorrect and which can be cured, is not cured within shall remain uncured for ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of Seller, LOL (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) this Agreement; (ii) any other Transaction Document or (iii) any other material agreement with, or other undertaking in favor of, CoBank or any of its Affiliates the Purchasers, to pay be performed or observed on the part of Seller, LOL or such Originator (as the case may be) and any such failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have been given by the Administrator, CoBank or such Purchaser, as the case may be, to the applicable non-performing party (but, in the case of clause (iii) only, only to the extent such failure would result in the occurrence of a Material Adverse Effect); or
(d) Seller or any Originator shall fail to make any payment in respect of any Indebtedness when due having an aggregate principal (or equivalent) amount in excess of $50,000,00010,000,000, when and as the same shall become due and payable (giving effect to any applicable grace or cure periods); or
(e) Any event or the default by condition occurs that results in any Indebtedness of Seller or any Originator having an aggregate principal (or equivalent) amount in excess of $10,000,000 becoming due prior to its scheduled maturity or that requires the performance of any termprepayment, provision repurchase, redemption or condition contained in Sections 6.01Adefeasance thereof, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit prior to its scheduled maturity; or
(f) There shall occur a Servicer Default; or
(g) This Agreement or any such Indebtedness of an Originator Purchase or any of its Affiliates Reinvestment pursuant to this Agreement shall be declared to be due and payable or required to be prepaid for any reason (other than by a regularly scheduled payment) prior pursuant to the date terms hereof) (i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of maturity thereof.
the Receivable Interest, in each Pool Asset, free and clear of any other Lien or (dii) Any Originator cease to create with respect to the items described in Section 9.1, or any the interest of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment the Administrator (for the benefit of creditors.the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(eh) An Event of Bankruptcy shall occur have occurred and remain continuing with respect to Seller, LOL, or any Originator other Originator; or
(i) The 12-month rolling average Sales Based Dilution Ratio for any Cut-Off Date exceeds twelve percent (12%); or
(j) The 12-month rolling average Sales Based Default Ratio for any Cut-Off Date exceeds six percent (6%); or
(k) The monthly Sales Based Default Ratio for any Cut-Off Date exceeds ten percent (10%); or
(l) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(m) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(n) The monthly Sales Based Delinquency Ratio for any Cut-Off Date exceeds ten percent (10%); or
(o) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to LOL or any other Originator, as applicable, whether or not consecutive, any final judgment against the Seller, LOL or any other Originator, or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One their respective properties or more final judgments for the payment of money in an amount in excess of $50,000,000assets, that, individually or in the aggregatetaken together with all other final judgments so undischarged, shall be entered unsatisfied and unstayed against any Originator on claims not covered by insurance such Person or as to which the insurance carrier Persons or any of their respective assets or properties has denied its responsibilitycaused, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without or has a stay reasonable possibility of execution.causing, a Material Adverse Effect; or
(ha) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, (b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, (c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, (d) LOL shall cease to own at least eighty percent (80%) of the equity interest in Winfield or (e) LOL subject to a Change in Control; or
(q) The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivablesassets of Seller, Collections and/or Related Security LOL or any other Originator and such lien Lien shall continue until not have been stayed or bonded in a manner satisfactory in the earlier sole discretion of the Administrator, or released within ten (i10) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienBusiness Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivablesassets of Seller, Collections and/or Related Security.
(i) Any Plan of any Originator LOL or any of its respective ERISA Affiliates:
other Originator and such Lien shall not have been released within five (i5) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISABusiness Days; or
(iir) is beingThere shall exist any other event or occurrence that has caused, or within the five years preceding the Closing Datecould reasonably be anticipated to cause, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAa Material Adverse Effect; or
(iiis) shall require such Originator or Seller’s net worth is less than $1,000,000 at any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAtime; or
(ivt) results The Credit Agreement described in a liability to such Originator the definition of “J▇ ▇▇▇▇▇▇ Credit Documents,” or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability replacement credit facility acceptable to the PBGC Administrator, shall have been terminated or a Plan that would have a Material Adverse Effect.shall otherwise cease to be in full force and effect; or
(ju) An ERISA Event shall have occurred that, Any Originator elects at any time not to sell or contribute Receivables to Seller in the opinion accordance with Section 1.2(b) of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods Purchase and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Sale Agreement.
Appears in 1 contract
Termination Events. The occurrence of any one or more of This Agreement may be terminated prior to the following events shall constitute a Termination EventClosing:
(a) Any Originator shall fail by the mutual consent of Parent and the Company;
(b) by either Parent or the Company if the Closing has not taken place on or before the End Date (as defined below), other than as a result of any failure on the part of such terminating party to comply with or perform any covenant or obligation of such terminating party set forth in this Agreement;
(c) by Parent if (i) any representation or warranty of the Company or any Key Stockholder contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to make any payment or deposit required hereunder when due andthe date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all “Material Adverse Effect” and other materiality qualifications (other than those set forth in Sections 2.4(c), 2.8, 2.9(c)(iii), 2.10(a)(vii), 2.10(a)(xviii), 2.10(c), 2.10(d) and 2.25) and all “Knowledge” qualifications contained in such payment representations and warranties shall be disregarded, and (B) any update of or deposit which is not in respect modification to the Disclosure Schedule made or purported to have been made on or after the date of principal, such failure continues for three (3) consecutive Business Daysthis Agreement shall be disregarded), or (ii) to perform any of the covenants or observe obligations of the Company or any covenant Key Stockholder contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure Agreement shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect breached in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachrespect; provided, however, that the materiality threshold if an inaccuracy in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure breach of any Originator representation or warranty of the Company or any Key Stockholder as of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior date subsequent to the date of maturity thereof.this Agreement or a breach of a covenant by the Company or any Key Stockholder is curable by the Company or such Key Stockholder through the use of commercially reasonable efforts during the 30-day period after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 9.1(c) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Key Stockholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(d) Any Originator by the Company if (i) any representation or warranty of Parent contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.1 would not be satisfied, or (ii) if any of its Subsidiaries Parent’s covenants contained in this Agreement shall generally not pay its debts have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of Parent as such debts become due of a date subsequent to the date of this Agreement or shall admit a breach of a covenant by Parent is curable by Parent through the use of commercially reasonable efforts during the 30-day period after the Company notifies Parent in writing its inability of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to pay its debts generally the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or shall make a general assignment for the benefit of creditors.breach;
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of Parent if (i) seven (7) days after inception and there shall have occurred any Material Adverse Effect, or (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred or circumstance shall exist that, in the opinion of the Required Lenders, when taken together combination with all any other ERISA Events that have occurred for all periods and are then outstandingevents or circumstances, could reasonably be expected to have or result in liability a Material Adverse Effect;
(f) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(g) by Parent, if any condition contained in Section 7 shall become incapable of fulfillment;
(h) by the Company, if any condition contained in Section 8 shall become incapable of fulfillment; or
(i) by Parent if the Required Merger Stockholder Votes are not obtained within one day after the date of this Agreement. The “End Date” shall be June 30, 2005; provided, however, that (i) if, on June 30, 2005, each of the Performance Guarantor conditions set forth in Sections 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing) is satisfied or any has been waived, other than either or both of its Subsidiaries the conditions set forth in an aggregate amount Sections 7.6 and 7.12, then the End Date shall be automatically extended until August 31, 2005, and (ii) if the End Date shall have been extended until August 31, 2005 and if, on August 31, 2005, each of the conditions set forth in excess Sections 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing) is satisfied or has been waived, other than either or both of $50,000,000the conditions set forth in Sections 7.6 and 7.12, then the End Date shall be automatically further extended until October 31, 2005.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute be a Termination Event"TERMINATION EVENT" under this Agreement:
(a) Any Originator shall fail failure on the part of the Debtor to pay or disburse when due the amounts provided for herein;
(b) failure (i) by the Debtor, to make observe or perform any payment term, covenant, condition or deposit required hereunder agreement set forth in Sections 3.2(a), (d), (e), (f), (g), (h), (i), (j), (l), (m), and (n) ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ (▇▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇y of the Debtor, the Seller or the Servicer contained herein or, in the Note Purchase Agreement, the Purchase Agreement or the Servicing Agreement to be true and correct in all material respects on any day when due andmade or deemed made hereunder, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) by the Debtor to observe or perform or observe any covenant other term, covenant, condition or agreement provided for herein or in the Note, the Note Purchase Agreement, the Servicing Agreement, the Purchase Agreement or the Interest Rate Cap (other than as referred to a term addressed in clause (i) above) which, in the case of this paragraph clause (a)ii) under any other Transaction Document to which it is above continues for a party and such failure shall continue for fifteen period of thirty (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (1030) days after the earlier of (Iu) the date such Originator receives on which written notice of such breach from Buyershall have been given to the Debtor, the Agent Seller or any Lender Group Agent and the Servicer, by the Company, the Surety Bond Provider or the Collateral Agent, (IIv) the date an Authorized Officer on which the Debtor became aware of such Originator knows breach or (w) the date on which the Debtor exercising reasonable care should have known become aware of such breach; provided, howeveror which, that the materiality threshold in the preceding case of clause (iii) above continues for a period of thirty (30) days after the earlier of (x) the date on which written notice of such failure shall not be applicable with respect have been given to any representationthe Debtor by the Company, warrantythe Surety Bond Provider, certification or statement that itself contains any materiality thresholdthe Collateral Agent, including Material Adverse Effect.(y) the date on which the Debtor became aware of such failure or (z) the date on which the Debtor exercising reasonable care should have become aware of such failure;
(c) Failure the Debtor, the Seller or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any Originator insolvency, readjustment of debt, marshalling of assets and liabilities or any similar proceedings of or relating to the Debtor, the Seller or the Servicer, as the case may be, or of or relating to all or substantially all of its Affiliates to pay property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Indebtedness when due insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Debtor, the Seller or the Servicer, as the case may be, and such decree or order shall have remained in excess force undischarged or unstayed for a period of $50,000,00060 days; or the default by any Originator in Debtor, the performance of any term, provision Seller or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of an applicable insolvency or shall reorganization statute, make a general any assignment for the benefit of creditors.its creditors or voluntarily suspend payment of its obligations; or the Debtor, the Seller or the Servicer, as the case may be, shall become unable for any reason to pledge Collateral to the Collateral Agent in accordance with the provisions of this Agreement;
(i) the Net Investment exceeds 91.0% of the sum of the Borrowing Base PLUS the amount on deposit in the Reserve Account for 30 consecutive days; (ii) the Net Investment PLUS the aggregate interest component of all Related Commercial Paper issued to fund or refinance the Net Investment equals or exceeds the Facility Limit or (iii) the Net Investment at any time equals or exceeds the sum of the Borrowing Base plus the amount on deposit in the Reserve Account;
(e) An Event the Debtor shall enter into any merger, consolidation or conveyance transaction regardless of Bankruptcy the surviving entity, or the Servicer shall occur with respect to enter into any Originator merger, consolidation or any of its Subsidiaries.conveyance transaction whereby it is not the surviving entity;
(f) A Change any material adverse change in the operations of Control shall occur.the Servicer which materially adversely affects the ability of the Servicer to service the Receivables or to perform its obligations under the Servicing Agreement (or any other agreement pursuant to which the Servicer is acting as servicer of the Receivables);
(g) One there shall be a payment default by the Seller or more the Debtor under any material agreement for borrowed money to which the Seller or the Debtor is a Party or there shall be a Servicer Event of Default under the Servicing Agreement;
(h) the Delinquency Ratio averaged over any three consecutive Collection Periods shall equal or exceed 6.00%;
(i) the Gross Default Ratio averaged over any three consecutive Collection Periods shall equal or exceed 12.00%;
(j) the Collateral Agent shall fail for any reason to have a valid and perfected first priority security interest in the Receivables and the proceeds thereof;
(k) there shall be a material breach by the Seller of its obligations under the Purchase Agreement;
(l) on and after the Remittance Date next following the fourth Collection Period after the Closing Date, the annualized Net Default Ratio averaged over any three consecutive Collection Periods is greater than or equal to 5.00%;
(i) a final judgments judgment for the payment of money in an amount excess of $1,000,000 shall have been rendered against the Seller by a court of competent jurisdiction and the Seller shall not have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedeas or otherwise) during the pendency of such appeal or (ii) the Seller shall have made payments of amounts in excess of $50,000,000, individually or 1,000,000 in settlement of any litigation;
(n) the weighted average APR of the Loans is less than 17.5%;
(o) the weighted average remaining term to maturity on the Receivables is greater than 45 months;
(p) a draw is made under the Surety Bond;
(q) the Surety Bond Provider shall have given notice that an event of default has occurred and is continuing under the Insurance Agreement;
(r) the term of the Surety Bond is not of the term required by the Company (which term shall be at least equal to the term of the latest maturing Receivable in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.facility plus 90 days);
(hs) The Internal Revenue Service shall file notice the Servicer's long-term debt rating falls below A-/A3 and a successor servicer acceptable to the Surety Bond Provider is not in place within 60 days;
(t) the long-term debt rating of any active provider of an Interest Rate Cap is below A-/A3 and a successor to such provider acceptable to the Surety Bond Provider is not in place or collateral acceptable to the Surety Bond Provider has not been posted, in each case, within 10 business days;
(u) the outstanding principal balance of Receivables originated under the Seller's Participating Program exceeds 10% of the Borrowing Base;
(v) the facility no longer carries a shadow rating of at least BBB- from S&P or at least Baa3 from Moody's; and
(w) the occurrence of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related SecurityWind-Down Ev▇▇▇ ▇▇▇ch is not cured within 35 days.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Security Agreement (First Investors Financial Services Group Inc)
Termination Events. The occurrence of any one This Agreement may, by notice given prior to or more of at the following events shall constitute a Termination EventClosing, be terminated:
(a) Any Originator shall fail (i) to make by Target upon written notice in the event of a material breach of any payment representation or deposit required hereunder when due and, for any such payment warranty of Buyer or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant Buyer Parent contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day this Agreement or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) be performed or complied with by Buyer or Buyer Parent pursuant to the terms of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c)Agreement, which shall be seven (7) days) after breach of a representation, warranty or covenant has continued without cure until the earlier of (IA) the date such Originator receives ten (10) business days following notice of such breach from Buyer, the Agent or any Lender Group Agent thereof by Target to Buyer Parent and (IIB) the date an Authorized Officer of such Originator knows or should have known of such breach.immediately prior to Closing;
(b) Any representationby Buyer Parent, warranty, certification upon written notice in the event of a material breach of any representation or statement made warranty of Target contained in this Agreement or any covenant or agreement to be performed or complied with by any Originator in the Sellers pursuant to the terms of this Agreement, any other Transaction Document to which it is breach of a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification warranty or statement that was so incorrect and which can be cured, is not cured within covenant has continued without cure until the earlier of (A) ten (10) business days after following notice thereof by Buyer Parent to Target and (B) immediately prior to Closing, except where the earlier of (I) the date such Originator receives notice failure of such breach from Buyer, the Agent or any Lender Group Agent representation and warranty to be true and correct (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect without giving effect to any representation, warranty, certification limitation as to “materiality” or statement that itself contains any materiality threshold, including “Material Adverse Effect.
(c” set forth therein) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000would not, individually or in the aggregate, result in a Material Adverse Effect of Target;
(c) by Buyer Parent if a Material Adverse Effect on Target shall be entered against have occurred;
(d) by mutual consent of Buyer Parent and Target;
(e) by either Buyer Parent or Target, if any Originator on claims not covered Governmental Body shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by insurance or as to which the insurance carrier has denied its responsibilitythis Agreement, and such judgment order, decree, ruling or other action shall continue unsatisfied have become final and in effect for sixty (60) consecutive days without a stay of execution.non-appealable;
(hf) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to by Buyer, if any of the ReceivablesStockholders’ Representative, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienTarget, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its their respective ERISA Representatives or Affiliates:
(i) , shall fail to be funded participate in accordance with the minimum funding standard required by discussions or negotiations or furnish information in breach of Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA5.6; or
(iig) is beingby either Buyer Parent or Target, or within the five years preceding if the Closing Datehas not occurred on or before 120 days from the date of this Agreement or such later date as the Parties may agree upon; provided, has been, terminated or that the subject of termination proceedings right to terminate this Agreement under this Section 4041(c) of ERISA; or
(iii9.1(g) shall require such Originator or not be available to any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; Party (or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion case of a termination by Target, to any Seller) whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected Closing to result in liability of the Performance Guarantor occur on or any of its Subsidiaries in an aggregate amount in excess of $50,000,000before such date.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a "Termination Event:") shall occur (regardless of the reason therefor):
(a) Any Originator the Seller shall fail (i) fail to make any payment or deposit required hereunder of any Seller Secured Obligation when due and, and payable and the same shall remain unremedied for any such payment one Business Day or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Daysmore, or (ii) fail or neglect to perform perform, keep or observe any covenant contained in Section 4.2 other provision of this Agreement or the other Related Documents (other than Sections 4.2(aany provision embodied in or covered by any other clause of this Section 9.01) and 4.2(c)) the same shall remain unremedied for one (1) three Business Day Days or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure more after written notice thereof shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after have been given by the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Operating Agent or any Lender Group the Collateral Agent and (II) to the date an Authorized Officer of such Originator knows or should have known of such breach.Seller;
(b) Any representationexcept for defaults occasioned solely by the filing of the Chapter 11 Cases, warranty, certification or statement made by defaults arising from Debts with respect to which the Bankruptcy Code prohibits any Originator in this Agreementfrom complying or permits any Originator not to comply, and defaults with respect to Debt where the holder thereof is stayed by the Bankruptcy code or the Bankruptcy court from exercising remedies as a result of such default, (i) a default or breach shall occur under any other agreement, document or instrument to which any Originator, any other Transaction Document to which it Originator's Subsidiary, the Seller or the Servicer is a party or by which any such Person or its property is bound that involves the failure to make any payment when due in respect of any Debt (other than the Seller Secured Obligations) of any such Person in excess of $1,000,000 in the aggregate, or (ii) any other document delivered pursuant thereto default or breach shall prove to have been incorrect in any material respect when made or deemed made and, occur with respect to any such representationDebt in excess of $1,000,000 in the aggregate and such default or breach causes, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice permits any holder of such Debt or a trustee or agent to cause, such Debt or a portion thereof to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, regardless of whether such default is waived, or such right is exercised, by such holder, trustee or agent, and such default or breach from Buyer, the Agent or any Lender Group Agent remains uncured and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.unwaived for 15 days;
(c) Failure of any Originator a case or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid proceeding (other than by the Chapter 11 Cases) shall have been commenced against any Originator, the Seller or the Servicer seeking a regularly scheduled paymentdecree or order in respect of any such Person (i) prior to under the date Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of maturity thereof.such Person's assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person;
(d) Any Originator except for the filing of the Chapter 11 Cases, any Originator, the Seller or the Servicer shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of its Subsidiaries shall generally not pay its debts as proceedings thereunder or to the filing of any such debts become due petition or shall admit in writing its inability to pay its debts generally the appointment of or shall taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, (iii) make a general an assignment for the benefit of creditors., or (iv) take any corporate action in furtherance of any of the foregoing;
(e) An Event of Bankruptcy shall occur with respect to any Originator the Seller or any of the Servicer (other than a DIP Servicer) is not Solvent or admits in writing its Subsidiaries.inability to, or is generally unable to, pay its Debts as such Debts become due;
(f) A Change a final judgment or judgments in excess of Control $5,000,000 (less the amount, if any, of any such judgment which is covered by insurance as to which the insurer has confirmed coverage in writing) in the aggregate at any time outstanding shall occur.be rendered against any Originator or the Servicer and the same shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay;
(g) One or more a final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, judgment shall be entered rendered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.Seller;
(h) The Internal Revenue Service any information contained in any Investment Base Certificate is untrue or incorrect in any respect or any representation or warranty of any Originator or the Seller herein or in any other Related Document or in any written statement, report, financial statement or certificate (other than an Investment Base Certificate) made or delivered by any Originator or the Seller to any Affected Party is untrue or incorrect in any material respect as of the date when made or deemed made;
(i) any Governmental Authority (including the IRS or the PBGC) shall file notice of a lien pursuant to Section 6323 of the Tax Code Lien with regard to any assets of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of any Originator (other than a Lien (i) seven (7) days after inception and (ii) knowledge limited by any Secured Party of such lien, or the PBGC shall impose a lien pursuant its terms to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA assets other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.Receivables and
Appears in 1 contract
Termination Events. The occurrence of any one or more Each of the following events shall constitute a "Termination Event":
(a) Any The Seller or either Originator shall fail (i) to make any payment or deposit required hereunder when due andunder this Agreement or the related Purchase Agreement, in each case that continues unremedied for any such payment or deposit which is not in respect three Business Days after discovery of principal, such failure continues for three by an officer of the Seller or the related originator or written notice of such failure is given to the Seller or such Originator by the Agent;
(3b) consecutive Business Days, Any representation and warranty made by the Seller or (ii) to perform either Originator in this Agreement or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Facility Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after regarding corporate organization or authority or the earlier enforceability of (I) the date such Originator receives notice of such breach from Buyer, the Agent this Agreement or any Lender Group Agent and (II) other such Facility Document or any information required to be given by the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document Originators to which it is a party or in any other document delivered pursuant thereto shall prove identify the Receivables proves to have been incorrect in any material respect when made or deemed made andmade, with respect to any such representation, warranty, certification or statement that was so incorrect and which can continues to be cured, is not cured within ten (10) incorrect in any material respect for a period of 30 days after the earlier of (I) the date such Originator receives written notice of such breach from Buyer, incorrectness shall have been given to the Agent Seller or any Lender Group Agent and (II) such originator by the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.Agent;
(c) Failure of the Seller or either Originator to observe or perform in any Originator material respect any material covenant or agreement under this Agreement or any other Facility Document to which it is a party which continues unremedied for a period of 30 days after written notice is delivered by the Agent to the Seller or such originator; or failure by the Seller or either Originator to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document to which it is a party on its Affiliates part to pay any be performed or observed and such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Seller or such Originator by the Agent;
(d) Any Indebtedness when due of the Seller in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates 100,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled paymentrequired prepayment) prior to the date of stated maturity thereof.;
(de) Any The entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee in bankruptcy, conservator, receiver or liquidator of the Seller, either Originator, WorldMark or any Association in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 days;
(f) The consent by the Seller, either Originator, WorldMark or any Association to the appointment of a trustee in bankruptcy, conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to any of the foregoing entities of or relating to substantially all of their property; or the Seller, either Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or WorldMark shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or shall reorganization statute, make a general an assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator its creditors or any voluntarily suspend payment of its Subsidiaries.
(f) A Change of Control shall occur.obligations;
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such Any judgment shall continue have been entered (and shall have remained unsatisfied and in or unstayed for more than ten Business Days) against either Originator or the Seller that if levied upon would have a material adverse effect for sixty (60) consecutive days without a stay on the condition, financial or otherwise, or the earnings, business affairs or business prospects of execution.such Originator or the Seller;
(h) The Internal Revenue Service Seller becomes an "investment company" and is required to register as such under the Investment Company Act;
(i) The IRS shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security Receivable and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within ten Business Days, or the PBGC shall impose file notice of a lien pursuant to Section 4068 of ERISA with regard to any Receivable and such lien shall not have been released within ten Business Days;
(j) If TRI or any Subsidiary other than the Seller shall fail to pay when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any Indebtedness in excess of $750,000 and such failure shall continue after the Receivablesapplicable grace period, Collections and/or Related Security.if any, specified in the agreement or instrument relating to such Indebtedness;
(k) If, as of any Settlement Date, (i) Any Plan the Charge-off Rate or the Consolidated Charge-off Rate exceeds 5% per annum, (ii) the average of any Originator the Delinquency Rate Amounts or any the Consolidated Delinquency Rate Amounts, in either case for the three Collection Periods immediately preceding the Collection Period in which such Settlement Date occurs exceeds 5%, (iii) the average of its respective ERISA Affiliates:the Defaulted Receivable Amounts or the Consolidated Defaulted Receivable Amounts, in either case for the three Collection Periods immediately preceding the Collection Period in which such Settlement Date occurs exceeds 3% or (iv) the Portfolio Yield is negative;
(l) If the Collateral Percentage falls below 125% and within five Business Days after the Seller learns of such event or is given notice of such event by the Agent or the Master Servicer it does not cause the Collateral Percentage to equal or exceed 125%;
(m) If the Seller has a Net Worth less than an amount equal to the greater of (i) shall fail to be funded in accordance with $22,000,000 or (ii) the minimum funding standard required by Section 412 product of 0.25 and the Tax Code or Section 302 Aggregate Net Investment;
(n) WorldMark, on an annual basis, has excess of ERISA for any plan year or a waiver revenues over expenses of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAless than $0; or
(o) Any Association, (i) fails to deliver to the Agent, within 90 days of the end of such Association's fiscal year, a report and an unqualified opinion of independent public accountants, or (ii) is beingfails to have an annual replacement reserve report generated (by an independent consultant acceptable to the Purchasers) and delivered to the Agent within 90 days of the end of such Associations year end, showing a fund balance (as such fund balances are shown on the financial statements of each Association) for the current year of less than zero, or projecting within the five next ten years preceding that the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other fund balance will equal less than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectzero.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Trendwest Resorts Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event” under this Agreement:
10.1 The occurrence of the Termination Date.
10.2 The Company or the Grantor shall fail to abide by, comply with, perform, or observe any term, condition, covenant, or other provision contained in this Agreement, after receipt of written notice and an opportunity to cure within thirty days (30) days of receipt of said notice by the Company and the Grantor.
10.3 The Company or the Grantor revokes, disavows, or terminates (or attempts to revoke, disavow, or terminate) its liability under any of the Bond Documents or this Agreement, challenges the validity or enforceability of any of the Bond Documents, this Agreement or any term or provision thereof or hereof, or denies any further liability or obligation thereunder or hereunder.
10.4 The Company or the Grantor:
(a) Any Originator shall fail (i) commences any case, proceeding, or other action under any existing or future law relating to make bankruptcy, insolvency, reorganization, or other relief of debtors, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to the Company or the debts of the Company, or the Grantor or the debts of the Grantor, or (D) appointment of a receiver, trustee, custodian, conservator, or other similar official for it or for all or any payment substantial part of the Company or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Daysthe Grantor, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make makes a general assignment for the benefit of creditors.its creditors with respect to the Company or the Grantor;
(eb) An Event has commenced against it in a court of Bankruptcy competent jurisdiction any case, proceeding, or other action of a nature referred to in clause (a) above which (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged, unstayed, or unbonded for 60 days; provided, however, that such 60-day period shall occur be extended provided that the Company or the Grantor, as the case may be, is actively pursuing dismissal of such proceeding; or
10.5 A judgment, lien, warrant, or levy is imposed on or entered against the Collateral, or any creditor of the Company commences an action against the Company or the Grantor seeking to collect any debt, obligation, or liability in excess of $5,000 and such action remains undismissed, undischarged, unstayed, or unbonded for 60 days; provided, however, that such 60-day period shall be extended provided that the Company or the Grantor, as the case may be, is actively contesting such action, or any creditor of the Company undertakes one or more Lien Enforcement Actions in connection with claims owing to such person or entity (provided that the Trustee shall be authorized, regardless of the amount of such claims, to take any action necessary to assert, enforce or maintain the priority of its lien over the lien asserted in any such Lien Enforcement Action with respect to any Originator Collateral or any of its Subsidiariesthe Trustee’s entitlement to the proceeds thereof).
(f) A Change of Control shall occur.
(g) One 10.6 The Company or more final judgments for the payment of money in an amount in excess of $50,000,000Grantor commences a case, individually proceeding, or in other action against the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard Trustee relating to any of the ReceivablesObligations, Collections the Collateral, the Bond Documents and/or Related Security and such lien shall continue until this Agreement for any action or omission by the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, Trustee or the PBGC shall impose a lien pursuant to Section 4068 of ERISA its agents in connection with regard to any of the Receivables, Collections and/or Related Securityforegoing.
(i) 10.7 Any Plan of any Originator representation or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 warranty of the Tax Code Company or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan the Grantor made herein, in the reporting required under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being5, or within in the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
Bond Documents (iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 Designated Default relating to a representation or warranty of ERISAthe Company or the Grantor) shall be false, and there shall result from misleading, or incorrect in any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectmaterial respect.
(j) An ERISA Event shall have occurred that, in the opinion 10.8 Failure of the Required Lenders, when taken together with Company to pay all other ERISA Events that have occurred for all periods outstanding fees and are then outstanding, could reasonably be expected to result in liability costs of the Performance Guarantor or any Trustee and its professionals within thirty (30) days of its Subsidiaries in an aggregate amount in excess of $50,000,000written request by the Trustee.
Appears in 1 contract
Sources: Forbearance Agreement (Red Oak Capital Fund III, LLC)
Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to an Originator:
(a) Any Such Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment on or deposit within one (1) Business Day after the date on which the same is not in respect of principal, such failure continues for three required to be made.
(3b) consecutive Business Days, Such Originator or (ii) Performance Guarantor shall fail to perform or observe any covenant contained in Section 4.1(l) or any provision of Section 4.2 (other than Sections 4.2(a) and Section 4.2(c).
(c) for one (1i) Business Day Such Originator or (iii) Performance Guarantor shall fail to perform or observe any covenant other covenant, agreement or agreement other obligation hereunder (other than as referred to in clause (i) another paragraph of this paragraph (a)Section 5.1) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen three (153) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days following the earlier to occur of (Ii) notice from Buyer (or the Administrative Agent or any Purchaser, as its collateral assignee) of such non-performance or non-observance, or (ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized on which a Responsible Officer of such Originator knows (or should have known Performance Guarantor, as the case may be) otherwise becomes aware of such breachnon-performance or non-observance.
(bd) Any representation, warranty, certification or statement made by any such Originator in this Agreement, any other Transaction Document to which it is a party or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with in any material respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten five (105) days after Business Days following the earlier to occur of (Ii) notice from Buyer (or the Administrative Agent or any Purchaser, as its collateral assignee) of such inaccuracy, or (ii) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized on which a Responsible Officer of such Originator knows (or should have known Performance Guarantor, as the case may be) otherwise becomes aware of such breach; providedinaccuracy, however, provided that the materiality threshold in the preceding clause this subsection shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effectthreshold although the five (5) Business Day cure period shall continue to apply.
(ce) Failure of any Any Originator shall default, or the Performance Guarantor or any of its Affiliates to pay any Indebtedness Subsidiaries (other than an Originator) shall default, in the payment when due in excess of $50,000,000any principal or of or interest on any Material Indebtedness; or the default by any Originator event or condition shall occur which results in the performance acceleration of the maturity of any termsuch Material Indebtedness.
(f) (i) Such Originator, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator Performance Guarantor or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against such Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) such Originator, Performance Guarantor or any of their respective Subsidiaries shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (f).
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(fg) A Change of Control shall occuroccur with respect to such Originator or Performance Guarantor.
(gh) One or more final judgments for the payment of money in an amount in excess of $50,000,00040,000,000, individually or in the aggregate, shall be entered against any such Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty ten (6010) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Sale Agreement (RPM International Inc/De/)
Termination Events. The occurrence of any one or more of the following events shall constitute a be termination events (“Termination EventEvents”) hereunder:
(a) Any default by the Borrower in the payment of any amount due and payable pursuant to Section 2.7(a)(ii), and such default shall continue for a period of five (5) days or more; or
(b) default by the Borrower in the payment of the principal of or any installment of the principal when it becomes due and payable on the Class A Stated Final Maturity Date, the Class B Stated Final Maturity Date or the Class C Stated Final Maturity Date, as applicable; or
(c) the Aggregate Term Loan Balance exceeds, for a period of two (2) Business Days or more, the product of the Net Advance Rate and the Collateral Amount; or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator shall fail (i) to make any payment or deposit required hereunder when due and, for by the terms of any such payment Transaction Documents; or
(f) failure on the part of the Borrower or deposit which is not the Originator in any material respect to observe or perform any of principal, such failure continues for three (3) consecutive Business Days, its covenants or (ii) to perform agreements set forth in this Agreement or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue continues unremedied for fifteen more than 30 Business Days after written notice to the Borrower or the Originator (15or 60 days if necessary to remedy such default); or
(g) consecutive days (other than Section 4.2(c), which shall any representation or warranty made or deemed to be seven (7) days) after made by the earlier Borrower or the Originator under or in connection with any of (I) the date such Originator receives notice of such breach from Buyer, the Agent Transaction Documents or any Lender Group Agent and (II) information required to be given by the date an Authorized Officer of such Borrower or the Originator knows to identify Loans or should have known of such breach.
(b) Any representationContracts pursuant to any Transaction Document, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been false or incorrect in any material respect when made, deemed made or deemed made anddelivered, with respect to any and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) failure continues unremedied for more than 30 days after the earlier of (Ix) the date such Originator receives notice of on which the Borrower or Credit Acceptance discovers such breach from Buyer, the Agent or any Lender Group Agent and (IIy) the date an Authorized Officer of such Originator knows on which the Borrower or should have known Credit Acceptance receives written notice of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.or
(h) The Internal Revenue Service shall file notice the occurrence of a lien pursuant an Insolvency Event relating to Section 6323 of the Tax Code with regard to any of Originator, the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, Borrower or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.Servicer; or
(i) Any Plan of any Originator the Borrower shall become an “investment company” or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with require registration as an “investment company” within the minimum funding standard required by Section 412 meaning of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAInvestment Company Act; or
(iij) is beinga regulatory, tax or within accounting body has ordered that the five years preceding activities of the Closing Date, has been, Borrower or any Affiliate of the Borrower contemplated hereby be terminated or may reasonably be expected to cause the subject of termination proceedings under Section 4041(c) of ERISABorrower or any Affiliate to suffer materially adverse regulatory, accounting or tax consequences; or
(iiik) there shall require such Originator exist any event or any occurrence that has a reasonable possibility of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAcausing a Material Adverse Effect; or
(ivl) results the Borrower, the Servicer or Credit Acceptance shall enter into any merger, consolidation or conveyance transaction, unless in the case of Credit Acceptance or the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(m) the Collateral Agent ceases to have a valid and perfected first priority security interest in a liability to material portion of the Collateral and such Originator or any failure has not been remedied within ten (10) Business Days; provided that, the portion of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but the Collateral in which the Collateral Agent does not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.valid and perfected first priority security interest will be material if the outstanding balance of the related Contracts exceeds 3% of the Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(jn) An ERISA Event any Change-in-Control shall have occurred that, occur;
(o) cumulative Collections are less than 75% of Forecasted Collections for any three consecutive Collection Periods; or
(p) any Transaction Document shall cease to be in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods full force and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000effect.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. The occurrence of any one or more Each of the following events shall constitute be a "Termination Event" hereunder:
(ai) Any Originator Servicer (if API) shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (iii) of this paragraph (a)next following) under any other Transaction Document to which it is a party and such failure shall continue remain unremedied for fifteen three Business Days or (15ii) consecutive days either Servicer (other than Section 4.2(c), which if API) or Seller shall fail to make any payment or deposit to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.made by it hereunder when due; or
(b) Any representation, warranty, certification representation or statement warranty made or deemed to be made by Seller, any Originator or Servicer (or any of their respective officers) under or in connection with this Agreement, any other Transaction Agreement Document to which it is a party or in any Periodic Report or other document information or report delivered pursuant thereto hereto shall prove to have been false or incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.or
(c) Failure of Seller, API or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document on its part to be performed or observed and any such failure shall remain unremedied for ten Business Days after written notice thereof shall have been given by the Agent to Seller or API; or
(d) A default (monetary, covenant or otherwise) shall have occurred and be continuing under or any instrument, contract, indenture or agreement evidencing, securing or providing for the issuance of its Affiliates to pay any Indebtedness when due indebtedness for borrowed money in excess of $50,000,000; 2,000,000 of, or guaranteed by, API or any Affiliate of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the default by any Originator in the performance giving of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A notice) would permit acceleration of the Senior Credit Agreement maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any such Indebtedness notice of an Originator or any of its Affiliates shall be declared to be due and payable or default required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries permit acceleration shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.have been given; or
(e) The average of the Delinquency Ratios for any three successive Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall occur have occurred and remained continuing with respect to Seller, API, any Originator or any Affiliate of its Subsidiaries.any thereof; or
(fi) A Change Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Seller or API to the Agent and Purchaser prior to the date of Control shall occur.
execution and delivery of this Agreement is pending against Seller, API or any Originator or (gii) One any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or more final judgments for the payment of money in an amount in excess of $50,000,000governmental proceedings so disclosed, individually or which, in the aggregatecase of clause (i) or (ii), shall be entered against in the reasonable opinion of the Agent is likely to materially adversely affect the financial position or business of Seller, API or any Originator on claims not covered by insurance or as impair the ability of Seller, API or any Originator to which the insurance carrier has denied perform its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.obligations under this Agreement or any other Agreement Document; or
(h) The Aggregate Participation Amounts shall exceed the Participation Amounts Limit; or
(i) The average of the Default Ratios for any three successive Month End Dates exceeds 5%; or
(j) There shall have occurred any event which materially adversely affects the collectability of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of Seller, any Originator or
(i) (y) shall not be true at any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the Receivables, Collections and/or Related Security assets of Seller or any Originator and such lien shall continue until the earlier of (i) seven (7) days after inception not have been released and (ii) knowledge by any Secured Party of such lienlien shall not have been released within 8 Business Days, or the PBGC Pension Benefit Guaranty Corporation shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA the Employee Retirement Income Security Act of 1974 with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan assets of Seller or any Originator or any of its respective ERISA Affiliates:
(i) and such lien shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAnot have been released within 8 Business Days; or
(iil) is beingOne Person, or within a group of Persons acting in concert that are unacceptable to the five years preceding the Closing Date, has been, terminated Agent or the subject Purchaser obtain, in one or more transactions, control of termination proceedings under Section 4041(c) more than 50% of ERISAthe issued and outstanding shares of capital stock of API having the power to elect a majority of directors of API; or Seller or any Originator other than API ceases to be a wholly-owned Subsidiary of API; or
(iiim) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 The average of the Tax Code or Section 306 or 307 Dilution Ratios for any three successive Month End Dates exceeds 8%;
(n) The average of ERISAthe Net Charge-Off Ratios for any three successive Month End Dates exceeds 2%; or
(ivo) results The Seller's Tangible Net Worth is less than $14,000,000; or
(p) A Purchase and Sale Termination Event (as defined in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title Exhibit IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectPurchase and Sale Agreement) occurs.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator NSI Enterprises shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three two (32) consecutive Business Days, or .
(iib) NSI Enterprises shall fail to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive and such failure shall not have been cured within 30 days (other than Section 4.2(c), which shall be seven (7) days) after the earlier to occur of (Ii) written notice thereof has been given to NSI Enterprises by NSI Georgia or (ii) an Executive Officer otherwise becomes aware of any such failure; provided, however, that such cure period shall be extended for a period of time, not to exceed an additional 30 days, reasonably sufficient to permit NSI Enterprises to cure such failure if such failure cannot be cured within the date initial 30-day period but reasonably could be expected to be capable of cure within such Originator receives notice of additional 30 days, NSI Enterprises has commenced efforts to cure such breach from Buyer, failure during the Agent or any Lender Group Agent initial 30-day period and (II) the date an Authorized Officer of NSI Enterprises is diligently pursuing such Originator knows or should have known of such breachcure.
(bc) Any representation, warranty, certification or statement made by any Originator NSI Enterprises in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachmade; provided, however, provided that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification representation or statement that warranty which itself contains any a materiality threshold, including Material Adverse Effect.
(ci) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries NSI Enterprises shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against NSI Enterprises seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) NSI Enterprises shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (c).
(e) An Event The Parent ceases to directly or indirectly own, beneficially and of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000record, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 100% of the Tax Code with regard to any issued and outstanding voting stock of the Receivables, Collections and/or Related Security each of NSI Georgia and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related SecurityNSI Enterprises.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Sale Agreement (National Service Industries Inc)
Termination Events. The occurrence of any one or more of the following events shall constitute a be termination events (“Termination EventEvents”) hereunder:
(a) Any default by the Borrower in the payment of any amount due and payable pursuant to Section 2.7(a)(iii), and such default shall continue for a period of five (5) days or more; or
(b) default by the Borrower in the payment of the principal of or any installment of the principal when it becomes due and payable on the Final Scheduled Payment Date; or
(c) the aggregate amount of Capital exceeds, for a period of two (2) Business Days or more, the product of the Net Advance Rate and the Collateral Amount; or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator shall fail (i) to make any payment or deposit required hereunder when due and, for by the terms of any such payment Transaction Documents; or
(f) failure on the part of the Borrower or deposit which is not the Originator in any material respect to observe or perform any of principal, such failure continues for three (3) consecutive Business Days, its covenants or (ii) to perform agreements set forth in this Agreement or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue continues unremedied for fifteen more than 30 Business Days after written notice to the Borrower or the Originator (15or 60 days if necessary to remedy such default); or
(g) consecutive days (other than Section 4.2(c), which shall any representation or warranty made or deemed to be seven (7) days) after made by the earlier Borrower or the Originator under or in connection with any of (I) the date such Originator receives notice of such breach from Buyer, the Agent Transaction Documents or any Lender Group Agent and (II) information required to be given by the date an Authorized Officer of such Borrower or the Originator knows to identify Loans or should have known of such breach.
(b) Any representationContracts pursuant to any Transaction Document, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been false or incorrect in any material respect when made, deemed made or deemed made anddelivered, with respect to any and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) failure continues unremedied for more than 30 days after the earlier of (Ix) the date such Originator receives notice of on which the Borrower or Credit Acceptance discovers such breach from Buyer, the Agent or any Lender Group Agent and (IIy) the date an Authorized Officer of such Originator knows on which the Borrower or should have known Credit Acceptance receives written notice of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.or
(h) The Internal Revenue Service the occurrence of an Insolvency Event relating to the Originator, the Borrower or the Servicer; or
(i) the Borrower shall become an “investment company” or require registration as an “investment company” within the meaning of the Investment Company Act; or
(j) a regulatory, tax or accounting body has ordered that the activities of the Borrower or any Affiliate of the Borrower contemplated hereby be terminated or may reasonably be expected to cause the Borrower or any Affiliate to suffer materially adverse regulatory, accounting or tax consequences; or
(k) there shall exist any event or occurrence that has a reasonable possibility of causing a Material Adverse Effect; or
(l) the Borrower, the Servicer or Credit Acceptance shall enter into any merger, consolidation or conveyance transaction, unless in the case of Credit Acceptance or the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(m) either (i) the IRS shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Originator and such lien (A) could reasonably be expected to have a Material Adverse Effect with respect to the Originator and (B) shall continue until the earlier of not have been released within five (i5) seven (7) days after inception and Business Days, or (ii) knowledge by any Secured Party the Pension Benefit Guaranty Corporation shall file notice of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 assets of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated Borrower or the subject of termination proceedings under Section 4041(cOriginator and such lien (A) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result have a Material Adverse Effect with respect to the Originator and (ii) shall not have been released within five (5) Business Days; or
(n) the Collateral Agent ceases to have a valid and perfected first priority security interest in liability a material portion of the Performance Guarantor or Collateral and such failure has not been remedied within ten (10) Business Days; provided that, the portion of the Collateral in which the Collateral Agent does not have a valid and perfected first priority security interest will be material if the outstanding balance of the related Contracts exceeds 3% of the Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(o) any Change-in-Control shall occur; or
(p) cumulativeCumulative Actual Collections are less than 75% of its Subsidiaries in an aggregate amount in excess of $50,000,000cumulativeCumulative Forecasted Collections for any three consecutive Collection Periods.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator the Transferor, any Seller or the Collection Agent shall fail (i) to make any payment or deposit required to be made by it hereunder or under any of the Transaction Documents when due and, for any such payment hereunder or deposit which is not in respect of principal, thereunder and such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Day; or
(b) Any any representation, warranty, certification or statement made by the Transferor, the Collection Agent or any Originator Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made (and, with respect to if any time period is provided for correcting any representation or warranty in Section 3.01, Section 3.02 or Section 3.03, has not been corrected within the time period provided in such Section); provided, however, that (i) no such representation, warranty, certification or statement that was so incorrect and relating to a Receivable for which can the Transferor has timely paid to the Collection Agent the Deemed Collection required to be curedpaid as a result thereof in accordance with Section 2.10(b) shall give rise to a Termination Event under this paragraph (b), is not cured within ten (10ii) days after the earlier of (I) the date any such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable incorrectness with respect to a representation or warranty in Section 3.01(f) or Section 3.01(r)
(i) shall not give rise to a Termination Event under this paragraph (b) if corrected within 15 days from the date a Responsible Officer of the Transferor obtains knowledge thereof, and (iii) any representation, warranty, certification such incorrectness with respect to a representation or statement that itself contains any materiality threshold, including Material Adverse Effect.warranty in Section 3.01(e) or Section 3.01(s) shall not give rise to a Termination Event under this paragraph (b) if corrected within three (3) Business Days from the date a Responsible Officer of the Transferor obtains knowledge thereof; or
(c) Failure of the Transferor, any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; Seller or the default by Collection Agent shall fail to observe or perform in any Originator in the performance of material respect any other term, provision covenant or condition contained agreement in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit this Agreement or any other Transaction Document (and, if any time period is provided for any such Indebtedness of an Originator observance or performance, such observance or performance has not occurred within such time period); provided, that any of its Affiliates such failure with respect to RECEIVABLES TRANSFER AGREEMENT the covenant set forth in Section 5.01(f) shall be declared not give rise to be due and payable or required to be prepaid a Termination Event under this paragraph (other than by a regularly scheduled paymentc) prior until after giving effect to the date of maturity thereof.cure period, if any, set forth in the related Contract; or
(d) Any Originator the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent or C&A or any Seller which shall have sold Receivables with an Outstanding Balance at such time of $10,000,000 or greater pursuant to the Receivables Purchase Agreement; or
(f) after the filing in the appropriate offices of the financing statements described in Sections 4.01(c), 4.01(d), 4.01(e) and 4.01(f), the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims (other than Permitted Encumbrances); or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferor or any Seller shall enter into any corporate transaction or merger whereby it is not the surviving entity (other than, in the case of any Seller, a merger or consolidation which does not, in the reasonable opinion of the Funding Agents, materially adversely affect the collectibility of the Receivables sold by such Seller or the performance of such Seller's obligations under the Transaction Documents); or
(i) there shall have occurred any event or condition which would have material adverse effect on either the collectibility of the Receivables or the ability of the Transferor or any Seller to perform its respective obligations under the Transaction Documents to which it is a party since the Restatement Date; or
(j) the Percentage Factor exceeds the Maximum Percentage Factor and the Transferor shall not have, by the next Business Day thereafter, reduced the Net Investment from previously received Collections or other funds available to the Transferor so as to reduce the Percentage Factor on such Business Day to less than or equal to 100%; or
(k) the average Dilution Ratio for the three preceding Settlement Periods exceeds 4.50%; or
(l) the average Default Ratio for the three preceding Settlement Periods exceeds 3.75%; or
(m) the average Delinquency Ratio for the three preceding Settlement Periods exceeds 14.00%; or
(n) C&A or any of its Subsidiaries shall generally not pay its debts default in the observance or performance of Section 6.14 or Section 6.15 of the Senior Credit Facility or an Event of Default (as such debts term is defined RECEIVABLES TRANSFER AGREEMENT in the Senior Credit Facility) described in clause (m) of Article VII of the Senior Credit Facility shall have occurred; or
(o) a Responsible Officer of the Transferor or any Seller shall receive notice or become aware that a notice of lien has been filed against the Transferor, any Seller or the Collection Agent under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(p) a Purchase Termination Date shall have occurred under the Receivables Purchase Agreement with respect to all Sellers; or
(q) C&A and the Sellers (in the aggregate) shall fail to maintain 100% ownership of the Transferor; or
(r) the existence at any time of any litigation, arbitration proceedings or governmental proceeding involving any Seller or the Transferor or the Receivables which would be reasonably likely to have a Material Adverse Effect; or
(s) (i) one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against a Seller, the Collection Agent, C&A or their Subsidiaries or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed or to the extent that an insurance carrier has accepted a claim for coverage thereto; (ii) one or more judgments for the payment of money shall be rendered against the Transferor and shall not have been satisfied; or (iii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Transferor, a Seller, the Collection Agent, C&A, or their Subsidiaries to enforce any such judgment; or
(t) the Collection Agent shall fail to deliver to the Administrative Agent any report required to be delivered by it under the terms of the Transaction Documents within one (1) Business Day of (i) with respect to any Deposit Report or Settlement Statement, when such report was due or shall admit in writing its inability (ii) with respect to pay its debts generally or shall make a general assignment for any other report, receipt by the benefit Collection Agent of creditors.written notice from the Administrative Agent that such report is due; or
(eu) An any Event of Bankruptcy shall occur with respect to any Originator or any Seller which shall have sold Receivables with an Outstanding Balance at such time of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of less than $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien 10,000,000 pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related SecurityReceivables Purchase Agreement.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Collins & Aikman Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any Originator TriMas Corp., TriMas LLC, the Transferor, any Seller or the Collection Agent shall fail (i) to make any payment or deposit required to be made by it hereunder or under any of the Transaction Documents when due and, for any such payment hereunder or deposit which is not in respect of principal, thereunder and such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Day; or
(b) Any any representation, warranty, certification or statement made by TriMas Corp., the Transferor, the Collection Agent or any Originator Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made made; provided that no such event shall constitute a Termination Event unless such event shall continue unremedied for a period of ten (10) days from the date a Responsible Officer of the Transferor obtains knowledge thereof; provided, further, that no grace period shall apply to Sections 3.01(c), 3.01(d), 3.01(j), 3.01(r) and 3.01(s) of this Agreement (and, for the avoidance of doubt, the cure period described in the first proviso of this Section 7.01(b) shall not apply to payments required to be made pursuant to Section 2.09(b)); and provided, further, that no such event shall constitute a Termination Event if the Transferor shall have timely paid to the Collection Agent the Deemed Collection required to be paid as a result of such event in accordance with respect to Section 2.09(b); or
(c) TriMas Corp., the Transferor, any Seller or the Collection Agent shall default in the performance of any payment, covenant or other undertaking (other than those covered by clause (a) above or clause (h) below) under any Transaction Document and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within default shall continue for ten (10) days after the earlier a Responsible Officer of (I) the date such Originator receives notice of such breach from BuyerTriMas Corp., TriMas LLC, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; Transferor or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity Collection Agent has knowledge thereof.; or
(d) Any Originator the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its Subsidiaries shall generally not pay or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.scheduled maturity; or
(e) An any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent, any Originator Seller, TriMas Corp., or any of its Subsidiaries.; or
(f) A Change after the filing in the appropriate offices of Control shall occur.the financing statements described in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e), the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims (other than, in the case of the Transferor, Liens for taxes, assessments or other governmental charges that are not yet due and payable and, in the case of any Seller, Permitted Originator Encumbrances); or
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, a Collection Agent Default shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.have occurred; or
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the ReceivablesTransferor, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienTriMas Corp., or any Seller shall enter into any corporate transaction or merger that is not otherwise permitted by this Agreement or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.Receivables Purchase Agreement; or
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) there shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding have occurred since the Closing Date, has been, terminated Date any event or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates condition which could reasonably be expected to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.; or
(j) An (i) the Asset Interest exceeds the Maximum Percentage Interest unless the Transferor reduces the Aggregate Net Investment from previously received Collections or other funds available to the Transferor, pays Collections into the Letter of Credit Collateral Account or increases the balance of the Receivables on the next Business Day following such breach so as to reduce the Asset Interest to less than or equal to 100%; or (ii) the Aggregate Credit Exposure shall exceed the Facility Limit; or
(k) the average Dilution Ratio for the three preceding Calculation Periods exceeds 9.0%; or
(l) the average Default Ratio for the three preceding Calculation Periods exceeds 3.0%; or
(m) the average Delinquency Ratio for the three preceding Calculation Periods exceeds 5.0%; or
(n) a Responsible Officer of the Transferor receives notice or becomes aware that a notice of lien has been filed against TriMas Corp., TriMas LLC, the Transferor or the Collection Agent under Section 412(n) of the Code or Section 302(f) of ERISA Event shall have occurred thatfor a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(o) the Receivables Purchase Agreement is terminated; or
(p) TriMas Corp., TriMas LLC and the Sellers (in the opinion aggregate) shall fail to maintain 100% ownership of the Required LendersTransferor; or
(q) TriMas Corp., when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor TriMas LLC or any of its Subsidiaries default in an aggregate amount the observance or performance of Section 6.12 or 6.13 of the Credit Agreement (whether or not such agreement remains in excess of $50,000,000effect).
Appears in 1 contract
Termination Events. The occurrence of any one or more Any of the following events acts or occurrences set forth in this Section 6.2 shall constitute a Termination Event under this Agreement (each, a “Termination Event:”).
(a) Any Originator The Asset Manager shall fail (i) to make observe or perform in any payment or deposit required hereunder when due and, for any such payment or deposit which is not in material respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred required to in clause (i) of be performed thereby under this paragraph (a)) under any other Transaction Document to which it is a party Agreement and such failure shall continue unremedied for fifteen thirty (1530) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives written notice of such breach from Buyer, shall have been given to the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachAsset Manager.
(b) Any representation, warranty, certification or statement made by any Originator warranty of the Asset Manager set forth in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Article V hereof shall prove to have been be incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier as of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; A petition naming the Asset Manager as debtor shall be filed under the United States Bankruptcy Code, or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates Asset Manager shall be declared to be due and payable adjudicated bankrupt or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator insolvent, or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally as they mature, or shall make a general an assignment for the benefit of its creditors; or shall generally not be paying its debts as they become due; or shall apply for, or consent to, the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its properties; or such receiver, trustee or similar officer shall be appointed without the application or consent of the Asset Manager; or the Asset Manager shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding (other than under the United States Bankruptcy Code) relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Asset Manager; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Asset Manager.
(ed) An Event of Bankruptcy Except as permitted under this Agreement, the Asset Manager shall occur accept or receive, or agree to accept or receive, any rebate, refund, commission, fee, kickback or similar payment, whether cash or otherwise and whether paid by or originating with respect an obligor or any other party (including, but not limited to, brokers and agents), as a result of, or in any way in connection with, management activities related to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually Asset or in connection with the aggregatesale, shall be entered against any Originator on claims not covered by insurance disposition or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan transfer of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse EffectAsset.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Sources: Asset Management Agreement (Money With Meaning Fund, LLC)
Termination Events. The occurrence of any one or more of the following events shall constitute a an “Termination Event”:
(a) Any Originator the Seller, the Servicer or the Performance Guarantor shall fail to remit or fail to cause to be remitted to the Agent, any Purchaser Agent or any Purchaser (i) to make on any payment day when due any payment, prepayment or deposit required hereunder when due and, for of any such payment amount to be remitted to reduce the Invested Amount or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, any portion thereof or (ii) to perform or observe any covenant contained in Section 4.2 within two (other than Sections 4.2(a) and 4.2(c)) for one (12) Business Day Days of becoming due, CP Costs, Yield, fees set forth in any Fee Letter or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document Aggregate Unpaids required to which it is a party be remitted to the Agent, any Purchaser Agent or any Purchaser; or
(b) the Seller or the Servicer shall fail to deliver any Settlement Report and such failure shall continue for fifteen three (153) consecutive days (other than Section 4.2(c), which shall be seven (7) days) Business Days after the earlier date when such Settlement Report became due; or the Servicer shall fail to perform its duties and obligations as Servicer under the terms of this Agreement or any other Transaction Document and such failure remains unremedied for a period of ten (I10) days after either (i) any Responsible Officer of the date Servicer becomes aware thereof or (ii) written notice thereof to such Originator receives notice of such breach from BuyerPerson by the Agent, the any Purchaser Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.Purchaser;
(bc) Any any representation, warranty, certification or statement made by any Originator in the Seller, the Servicer or Schein under this Agreement, Agreement or any other Transaction Document to which it is a party or in any material agreement, certificate, report, appendix, schedule or document furnished by the Seller, the Servicer or Schein to the Agent, any Purchaser Agent or any Purchaser pursuant to or in connection with this Agreement or any other document delivered pursuant thereto Transaction Document shall prove to have been incorrect false or misleading in any material respect when as of the time made or deemed made and, with respect (including by omission of material information necessary to any make such representation, warranty, certification or statement that was so incorrect not misleading); or
(d) a Change in Control shall occur with respect to the Performance Guarantor; (ii) Schein shall cease to (A) own 100% of the capital stock of the Seller or (B) own (directly or indirectly) 100% of the capital stock of each Originator (other than Schein); or (iii) Schein shall (A) consolidate or merge with or into any other Person other than as permitted under Section 7.4 hereof or (B) sell, lease or otherwise transfer all or substantially all of its assets to any other Person unless Schein is the survivor of such transaction (unless, in each of clauses (i) through (iii), consented to in writing in advance by Agent in its sole discretion); or
(e) except as otherwise provided in this Section 9.1, the Seller or Schein shall default or fail in the performance or observance of any other covenant, agreement or duty applicable to it contained herein and which can be cured, is not cured within such default or failure shall continue for ten (10) days Business Days after either (i) any Responsible Officer of the earlier of (I) the date Seller or such Originator receives becomes aware thereof or (ii) written notice of thereof to such breach from BuyerPerson by the Agent, the any Purchaser Agent or any Lender Group Agent and Purchaser; or
(IIi) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause Seller shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates fail to pay any Indebtedness when due and such failure shall continue beyond the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (ii) Schein or any of its Consolidated Subsidiaries (other than the Seller) shall fail to pay any Indebtedness in excess of $50,000,000; or the default by any Originator in the performance 75,000,000 of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator Schein or any of its Affiliates Consolidated Subsidiaries, as the case may be, or any interest or premium on such Indebtedness, in either case, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (iii) any other default under any agreement or instrument relating to any such Indebtedness or any other event shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness unless (A) BTMU is a party to such other agreement or instrument and (B) BTMU and the other requisite lenders thereunder consent to a written waiver of such default or other event in accordance with the terms of such agreement or instrument; or (iv) a final court decision of $75,000,000 or more shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator rendered against Schein or any of its Consolidated Subsidiaries and (A) such amount remains unpaid and (B) such amount remains undischarged for a period of 45 consecutive days during which execution shall generally not pay be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Schein or any of its debts as Subsidiary to enforce any such debts become due judgment; or
(i) the average of the Delinquency Ratios, computed for each of the immediately preceding three months, shall exceed 14.50%; (ii) the average of the Default Ratios, computed for each of the immediately preceding three months, shall exceed 2.00%; (iii) the average of the Dilution Ratios, computed for each of the immediately preceding three months, shall exceed 6.25%; or (iv) the average of the Portfolio Turnover, computed for each of the immediately preceding three months shall admit exceed 45 days; or
(g) there shall be pending any litigation, investigation or proceeding, which the Seller is required to disclose pursuant to Section 7.1(i) hereof, which in writing the reasonable opinion of the Required Purchaser Agents is likely to materially adversely affect the financial position or results of operations of the Seller or Schein or materially impair the ability of the Seller or Schein to perform its inability respective obligations under the Transaction Documents; or
(h) there shall have occurred any event or change in the financial condition or operations of the Seller, the Servicer, the Performance Guarantor or Schein which could reasonably be expected to pay have a material adverse effect on (i) the ability of the Seller, the Servicer, the Performance Guarantor or Schein to perform its debts obligations under any Transaction Document, (ii) the legality, validity or enforceability of any Transaction Document, (iii) the Agent’s security interest in the Receivables generally or shall make a general assignment for in any significant portion of such Receivables or the benefit proceeds thereof, or (iv) the collectibility of creditors.the Receivables generally or of any material portion of such Receivables; or
(ei) An an Event of Bankruptcy shall occur with respect to the Seller, the Servicer, any Originator Originator, the Performance Guarantor or any of its Subsidiaries.Schein’s material subsidiaries thereof; or
(fj) A Change the Aggregate Invested Amount shall exceed the Purchase Limit and the Seller shall have failed to pay to each Purchaser Agent for the benefit of Control shall occur.the related Purchasers within three (3) days an amount to be applied to reduce the Aggregate Invested Amount (ratably, according to each Purchaser’s aggregate Invested Amount), such that after giving effect to such payment the Aggregate Invested Amount is less than or equal to the Purchase Limit; or
(gk) One the Aggregate Investment amount exceeds the then applicable Purchase Limit or the Net Pool Balance shall at any time be less than an amount equal to the sum of (i) the Aggregate Invested Amount plus (ii) the Required Reserve; or
(l) Schein resigns as Servicer; or
(m) Schein shall default or fail in the performance or observance of any of the covenants set forth in Section 8.1 of the Credit Agreement as in effect on September 12, 2012 (without giving effect to any amendment, waiver, termination, supplement or other modification thereof unless consented to by the Agent); or
(n) a final court decision for $25,000 or more final judgments shall be rendered against the Seller; or;
(o) the Performance Guarantor shall default or fail in the performance of any covenant or agreement set forth in the Performance Undertaking; or
(p) the “Termination Date” or any “Termination Event” under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or Schein shall for any reason cease to transfer, or cease to have the payment legal capacity to transfer, or otherwise be incapable of money transferring Receivables to Seller under the Receivables Sale Agreement; or
(q) this Agreement shall terminate in an amount in excess of $50,000,000, individually whole or in part (except in accordance with its terms), or shall cease to be effective or to be the aggregatelegally valid, binding and enforceable obligation of Seller, or any Seller Party shall be entered against directly or indirectly contest in any Originator on claims not covered by insurance manner such effectiveness, validity, binding nature or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.enforceability; or
(hr) The the Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability of its obligations thereunder; or
(s) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Internal Revenue Code with regard to any of the ReceivablesPurchased Assets or any assets of the Seller, Collections and/or Related Security Performance Guarantor or any Originator and such lien shall continue until the earlier of (i) not have been released within seven (7) days after inception and (ii) knowledge by any Secured Party of such liendays, or the PBGC shall, or shall impose indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAPurchased Assets; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(jt) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted in, or could be reasonably expected to have, a material adverse effect on the business, financial condition, operations or properties of Schein and the ERISA Affiliates taken as a whole; or
(u) the Agent for the benefit of the Secured Parties shall cease to have occurred thata valid, perfected, first priority security interest in the opinion of Receivables, the Required LendersRelated Security, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor any Collection Account or any of its Subsidiaries in an aggregate amount in excess of $50,000,000Lock-Box.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a Termination EventEvent with respect to an Originator:
(a) Any Such Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, and such failure continues for three one (31) consecutive Business DaysDay, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) under or any other Transaction Document to which it is a party and such failure shall continue for fifteen five (155) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachBusiness Days.
(b) Any representation, warranty, certification or statement made by any such Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effectmade.
(c) Failure of any such Originator or any of its Affiliates Performance Guarantor to pay any Indebtedness when due in excess of $50,000,0005,000,000; or the default by any such Originator or Performance Guarantor in the performance of any term, provision or condition contained in Sections 6.01Aany agreement under which any such Indebtedness was created or is governed, 6.05Athe effect of which is to cause, 6.06Aor to permit the holder or holders of such Indebtedness to cause, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of an such Originator or any of its Affiliates Performance Guarantor shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator (i) Such Originator, Performance Guarantor or any of its their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against such Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) such Originator, Performance Guarantor or any of their respective Subsidiaries shall take any action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occuroccur with respect to Performance Guarantor or such Originator shall cease to be owned directly or indirectly by Performance Guarantor.
(gf) One or more final judgments for the payment of money in an amount in excess of $50,000,0005,000,000, individually or in the aggregate, shall be entered against any such Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibilityresponsibility or as to which such Originator or Performance Guarantor is not otherwise indemnified pursuant to terms acceptable to Buyer (or its assigns), and such judgment shall continue unsatisfied and in effect for sixty thirty (6030) consecutive days without a stay of execution.
(hg) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) Originators shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is beingprovide, or within cause to be provided, on or before April 30, 2003, the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
revised Credit and Collection Policy in form and substance satisfactory to Buyer (iii) shall require such Originator or any of and its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effectassigns).
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
Appears in 1 contract
Termination Events. The occurrence of any one or more of the following events shall constitute a be termination events (“Termination EventEvents”) hereunder:
(a) Any default by the Borrower in the payment of any amount due and payable pursuant to Section 2.7(a)(ii), and such default shall continue for a period of five (5) days or more; or
(b) default by the Borrower in the payment of the principal of or any installment of the principal when it becomes due and payable on the Class A Stated Final Maturity Date, the Class B Stated Final Maturity Date or the Class C Stated Final Maturity Date, as applicable; or
(c) the Aggregate Term Loan Balance exceeds, for a period of two (2) Business Days or more, the product of the Net Advance Rate and the Collateral Amount; or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator shall fail (i) to make any payment or deposit required hereunder when due and, for by the terms of any such payment Transaction Documents; or
(f) failure on the part of the Borrower or deposit which is not the Originator in any material respect to observe or perform any of principal, such failure continues for three (3) consecutive Business Days, its covenants or (ii) to perform agreements set forth in this Agreement or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue continues unremedied for fifteen more than 30 Business Days after written notice to the Borrower or the Originator (15or 60 days if necessary to remedy such default); or
(g) consecutive days (other than Section 4.2(c), which shall any representation or warranty made or deemed to be seven (7) days) after made by the earlier Borrower or the Originator under or in connection with any of (I) the date such Originator receives notice of such breach from Buyer, the Agent Transaction Documents or any Lender Group Agent and (II) information required to be given by the date an Authorized Officer of such Borrower or the Originator knows to identify Loans or should have known of such breach.
(b) Any representationContracts pursuant to any Transaction Document, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto shall prove to have been false or incorrect in any material respect when made, deemed made or deemed made anddelivered, with respect to any and such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) failure continues unremedied for more than 30 days after the earlier of (Ix) the date such Originator receives notice of on which the Borrower or Credit Acceptance discovers such breach from Buyer, the Agent or any Lender Group Agent and (IIy) the date an Authorized Officer of such Originator knows on which the Borrower or should have known Credit Acceptance receives written notice of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.or
(h) The Internal Revenue Service shall file notice the occurrence of a lien pursuant an Insolvency Event relating to Section 6323 of the Tax Code with regard to any of Originator, the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, Borrower or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.Servicer; or
(i) Any Plan of any Originator the Borrower shall become an “investment company” or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with require registration as an “investment company” within the minimum funding standard required by Section 412 meaning of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISAInvestment Company Act; or
(iij) is beinga regulatory, tax or within accounting body has ordered that the five years preceding activities of the Closing Date, has been, Borrower or any Affiliate of the Borrower contemplated hereby be terminated or may reasonably be expected to cause the subject of termination proceedings under Section 4041(c) of ERISABorrower or any Affiliate to suffer materially adverse regulatory, accounting or tax consequences; or
(iiik) there shall require such Originator exist any event or any occurrence that has a reasonable possibility of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAcausing a Material Adverse Effect; or
(ivl) results the Borrower, the Servicer or Credit Acceptance shall enter into any merger, consolidation or conveyance transaction, unless in the case of Credit Acceptance or the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(m) the Collateral Agent ceases to have a valid and perfected first priority security interest in a liability to material portion of the Collateral and such Originator or any failure has not been remedied within ten (10) Business Days; provided that, the portion of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but the Collateral in which the Collateral Agent does not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.valid and perfected first priority security interest will be material if the outstanding balance of the related Contracts exceeds 3% of the Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(jn) An ERISA Event any Change-in-Control shall have occurred thatoccur;
(o) Cumulative Actual Collections, in as determined at the opinion end of the Required Lendersrelated Collection Period, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability expressed as a percentage of the Performance Guarantor or Cumulative Forecasted Collections, as determined at the end of the related Collection Period, are less than 75% of Cumulative Forecasted Collections for any of its Subsidiaries three consecutive Collection Periods; or
(p) any Transaction Document shall cease to be in an aggregate amount in excess of $50,000,000full force and effect.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. The occurrence of any one or more of the following events shall constitute a be Termination EventEvents (“Termination Events”) hereunder:
(a) Any as of any Determination Date, the Average Portfolio Delinquency Ratio exceeds 6.5%; or
(b) as of any Determination Date, the Average Pool Charged-Off Ratio exceeds 3.0%; or
(c) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 4.0%; or
(d) the Advances Outstanding on any day exceeds the lesser of the Facility Amount and Maximum Availability and the same continues unremedied for two Business Days; provided, however, during the period of time that such event remains unremedied, no additional Advances will be made under this Agreement and any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.10; or
(e) a Servicer Default occurs and is continuing; or
(f) [Reserved]; or
(g) failure on the part of the Seller or Originator shall fail (i) to make any payment or deposit (including without limitation with respect to Collections) required hereunder when due and, for by the terms of any Transaction Document on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or
(h) the occurrence of an Insolvency Event relating to the Originator, the Seller, the Servicer or any Affiliate of the Originator which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) a party to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause a Permitted Securitization Transaction; or
(i) the Seller shall become required to register as an “investment company” within the meaning of this paragraph the Investment Company Act of 1940, as amended (a)the “40 Act”) under or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 40 Act; or
(j) a regulatory, tax or accounting body has ordered that the activities of the Seller or any Affiliate of the Seller contemplated hereby be terminated or, as a result of any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyerevent or circumstance, the Agent or any Lender Group Agent and (II) activities of the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document Seller contemplated hereby may reasonably be expected to which it is a party or in any other document delivered pursuant thereto shall prove to have been incorrect in any material respect when made or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after cause the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator Seller or any of its respective Affiliates to pay any Indebtedness when due in excess of $50,000,000suffer materially adverse regulatory, accounting or tax consequences; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.or
(dk) Any Originator there shall exist any event or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make occurrence that has caused a general assignment for the benefit of creditors.Material Adverse Effect; or
(el) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security Seller or the Originator and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such liennot have been released within five Business Days, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.assets of the Seller or the Originator and such lien shall not have been released within five Business Days; or
(m) any Change-in-Control shall occur; or
(i) Any Plan of any Originator Transaction Document, or any of its respective ERISA Affiliates:
lien or security interest granted thereunder, shall (i) shall fail to be funded except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the minimum funding standard required by Section 412 legally valid, binding and enforceable obligation of the Tax Code Seller, the Originator, or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; orServicer,
(ii) is beingthe Seller, the Originator, the Servicer or within any other party shall, directly or indirectly, contest in any manner the five years preceding the Closing Dateeffectiveness, has beenvalidity, terminated binding nature or the subject enforceability of termination proceedings under Section 4041(c) of ERISA; any Transaction Document or any lien or security interest thereunder, or
(iii) shall require such Originator any security interest securing any obligation under any Transaction Document shall, in whole or any of its ERISA Affiliates in part, cease to provide be a perfected first priority security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISAinterest; or
(ivo) results on any date of determination, the aggregate Hedge Notional Amount in a liability to effect for that day under all Hedge Transactions is less than the product of the Hedge Percentage on such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISAday and the Hedge Amount on that day, and there the same continues unremedied for a period of two Business Days; or
(p) any failure on the part of the Seller or the Originator duly to observe or perform in any material respect any other covenants or agreements of the Seller or the Originator set forth in this Agreement or the other Transaction Documents to which the Seller or the Originator is a party and the same continues unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall result from any such failure, waiver, termination or other event a liability have been given to the PBGC Seller or a Plan that would the Originator by the Administrative Agent and (ii) the date on which the Seller or the Originator becomes aware thereof; or
(q) any representation, warranty or certification made by the Seller or the Originator in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect.Effect on the Secured Parties and which continues to be unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Seller or the Originator by the Administrative Agent and (ii) the date on which the Seller or the Originator becomes aware thereof; or
(jr) An ERISA Event shall have occurred thatany failure by the Seller to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(s) the failure of the Seller, the Servicer or the Originator to make any payment due with respect to recourse debt or other obligations, in the opinion case of the Required LendersServicer or the Originator, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,00010,000,000, or the occurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations; or
(1) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess of $10,000,000, individually or in the aggregate, against the Originator, or $2,000,000 against the Seller, individually or in the aggregate, and the Originator shall not have either (i) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (2) the Originator or the Seller shall have made payments of amounts in excess of $7,500,000 by the Originator, or $2,000,000 by the Seller, in the settlement of any litigation, claim or dispute (excluding payments made from insurance proceeds); or
(u) as of any Determination Date, the Pool Yield does not equal or exceed the Minimum Pool Yield and the same continues unremedied by the following Determination Date; or
(v) any deficiency exists in the Minimum Overcollateralization Amount on any day and the same continues unremedied for two Business Days; or
(w) [Reserved]; or
(x) as of any Quarterly Determination Date, the Originator’s ratio of Consolidated Funded Indebtedness to Consolidated Tangible Net Worth is more than 6 to 1; provided that such calculation shall exclude the effects of any Liquid Real Estate Assets that are acquired and levered by the Originator solely to satisfy REIT asset and income tests.
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Termination Events. The occurrence of (a) This Agreement may be terminated at any one or more of time prior to the following events shall constitute a Termination EventClosing:
(a) Any Originator shall fail (i) to make any payment or deposit required hereunder when due and, for any such payment or deposit which is not in respect by the mutual written agreement of principal, such failure continues for three (3) consecutive Business Days, or the Purchaser and the Seller;
(ii) by (A) the Purchaser or the Seller on or after February 15, 2014 if the Closing shall not have occurred by the close of business on such date, provided that the terminating party may not be in default of any of its obligations hereunder and may not have caused the failure of the transactions contemplated by this Agreement to perform have occurred on or observe any covenant contained in Section 4.2 before such date; or (other than Sections 4.2(aB) and 4.2(c)) for one (1) Business Day the Purchaser on or after February 15, 2014 if the Seller shall not have delivered the Audited Statements to the Purchaser by that date ;
(iii) to perform by the Purchaser if there is a breach of any representation or observe warranty set forth in Article IV or Article V or any covenant or agreement (other than as referred to in clause (i) be complied with or performed by the Seller pursuant to the terms of this paragraph Agreement;
(a)iv) under any other Transaction Document to which it by the Purchaser if the Company shall have breached the Management Agreement; or
(v) by the Seller if there is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall breach of any representation or warranty set forth in Article VI or of any covenant or agreement to be seven (7) days) after complied with or performed by the earlier Purchaser pursuant to the terms of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachthis Agreement.
(b) Any representation, warranty, certification or statement made by Upon the occurrence of any Originator valid termination event set forth in this AgreementSection 9.2, any other Transaction Document the Purchaser and/or the Seller, as applicable, shall deliver written notice to which it is a party or in any other document delivered pursuant thereto the non-terminating party. Upon delivery of such notice, (i) this Agreement shall prove terminate and the transfer of the Company Shares contemplated hereby shall be deemed to have been incorrect abandoned without further action by the Purchaser or the Seller, and (ii) the Management Agreement shall automatically terminate.
(c) In the event that this Agreement is validly terminated as provided in any material respect when made or deemed made andthis Section 9.2, with respect to any such representation, warranty, certification or statement that was so incorrect then each of the parties shall be relieved of their respective duties and which can be cured, is not cured within ten (10) days obligations arising under this Agreement after the earlier of (I) the date such Originator receives notice of such breach from Buyer, termination and such termination shall be without liability to the Agent Purchaser or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breachSeller; provided, however, that nothing in this Section 9.2 shall relieve the materiality threshold in Purchaser or the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure Seller of any Originator or liability for any willful breach of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; this Agreement or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Management Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) occurring prior to the date proper termination of maturity thereofthis Agreement.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
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Termination Events. The occurrence of any one or more (a) Each of the following events shall constitute a “Termination Event”:
(a) Any Originator shall fail (i) failure on the part of the Borrower to make any payment payment, transfer or deposit required hereunder when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) by the terms of this paragraph (a)) under Agreement or any other Transaction Document to which it is a party on the day such payment or deposit is required to be made and such failure shall continue continues for fifteen more than two (152) consecutive Business Days;
(ii) failure by the Borrower duly to perform or observe any term, covenant or agreement of the Borrower contained in this Agreement or the other Transaction Documents to which the Borrower is a party and such failure remains unremedied for thirty (30) calendar days (other than Section 4.2(c), which shall be seven (7) days) after the earlier earliest to occur of: (1) discovery by a Responsible Officer of the Borrower of such failure, (I2) the date such Originator receives Responsible Officer should have discovered such failure, and (3) receipt of a written notice of such breach failure from Buyerthe Administrative Agent;
(iii) any representation, warranty or certification made or deemed to be made by the Agent Borrower under this Agreement or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.
(b) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document to which it the Borrower is a party party, or in any other document delivered Monthly Report or any information required to be given by the Borrower or the Originator to the Administrative Agent to identify Contracts pursuant thereto to any Transaction Document to which Borrower is a party, shall prove to have been false or incorrect in any material respect when made or deemed made andor delivered, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be curedremains unremedied for thirty (30) calendar days following the earliest to occur of: (1) discovery by a Responsible Officer of the Borrower of such failure, is not cured within ten (10) days after the earlier of (I2) the date such Originator receives Responsible Officer should have discovered such failure, and (3) receipt of a written notice of such breach failure from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.Administrative Agent;
(civ) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.the Borrower;
(fv) A Change on any day a Borrowing Base Deficiency shall occur and, by the earlier of Control shall occur.(A) the next Payment Date and (B) the fifth (5th) Business Day after such Borrowing Base Deficiency first occurs, such Borrowing Base Deficiency is not cured;
(gvi) One the occurrence of a Material Adverse Effect with respect to the Borrower or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.Servicer;
(hvii) The the Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Tax Code with regard to any assets of the Receivables, Collections and/or Related Security and such lien shall continue until Borrower or the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lienServicer, or the PBGC Pension Benefit Guaranty Corporation shall impose file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the Receivablesassets of the Borrower or the Servicer;
(viii) the Administrative Agent shall fail for any reason to have a first priority perfected security interest in all or any portion of the Collateral;
(A) any Transaction Document, Collections and/or Related Securityor any Lien granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower or the Servicer, (B) the Borrower, the Servicer or any other Person shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability or (C) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be perfected first priority security interest;
(x) a Change of Control shall occur with respect to the Borrower;
(xi) failure to deliver any Monthly Report within five (5) Business Days of the date when due;
(xii) the average of the Delinquency Ratio (Managed Contracts) for any Measurement Date and the two immediately preceding Measurement Dates exceeds 12.50%;
(xiii) the average of the Delinquency Ratio (Pledged Contracts) for any Measurement Date and the two immediately preceding Measurement Dates exceeds 12.50%;
(xiv) the average of the Net Losses Ratios (Managed Contracts) as of the last day of any Accounting Period and the last day of each of the two immediately preceding Accounting Periods exceeds 3.50%;
(xv) the average of the Net Losses Ratios (Pledged Contracts) for any Accounting Period related to such Determination Date and the two immediately preceding Accounting Periods exceeds 3.50%;
(xvi) the Extension Rate (Managed Contracts) for any Measurement Date and the two immediately preceding Measurement Dates exceeds 7.00%;
(xvii) the Extension Rate (Pledged Contracts) for any Measurement Date and the two immediately preceding Measurement Dates exceeds 7.00%;
(xviii) the Excess Spread for any Determination Date is less than 5.00%.
(ixix) Any Plan Available Cash on the last Business Day of any Originator Accounting Period is less than $15 million;
(xx) Available Liquidity on any day is less than $20 million;
(xxi) Net Worth on any day is less than the Required Net Worth;
(xxii) the Leverage Ratio on the last day of any Collection Period exceeds 5.0:1.0;
(xxiii) the Borrower shall be required to be registered as an “Investment Company” under the Investment Company Act or the arrangements contemplated by the Transaction Documents shall require the Borrower to register as an “Investment Company” under the Investment Company Act;
(xxiv) on any Funding Date, the amount on deposit in the Reserve Account is less than the Reserve Account Required Amount (after giving effect to the related Loan or Loans); and
(xxv) the occurrence of a default under any Loan made by any Affiliate of the Lender to DTAC, DTAG or any DT Entity.
(b) In addition to and not in limitation of its respective ERISA Affiliates:
any other provision of this Agreement, upon the occurrence of any Termination Event (i) the Termination Date shall, without demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, occur, (ii) the Lender shall fail have no further obligation hereunder to make any Loan, (iii) all proceeds from the Pledge Contracts and the other Collateral will be funded applied in accordance with the minimum funding standard provisions of Section 2.7 and (iv) the Administrative Agent, on behalf of the Lender, may direct the application of funds from the Reserve Account to repay any portion or all of the Note Balance.
(c) Upon and following the occurrence of a Termination Event, the Administrative Agent may, without notice to the Borrower except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Note Balance, any Interest accrued thereon and or any other amount due and owing to any Secured Party against amounts payable to the Borrower from the Reserve Account, the Collection Account or any part of such accounts in accordance with and subject to the priorities required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect2.7.
(jd) An ERISA Event shall have occurred thatUpon and following the occurrence of a Termination Event, in the opinion Administrative Agent may take any action permitted under the Transaction Documents.
(e) Upon and following the occurrence of a Termination Event, the Required Lenders, when taken together Lender may replace the Servicer with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor Backup Servicer or any of its Subsidiaries in an aggregate amount in excess of $50,000,000another successor servicer.
Appears in 1 contract
Termination Events. The occurrence of If any one or more of the following events shall constitute (each a “Termination Event”) shall occur:
(a) Any SPV Entity, any Originator or any Servicer shall fail (i) to make when due any payment or deposit required hereunder when due andto be made by it under this Agreement or any other Transaction Document, and such failure, shall continue unremedied for any such payment or deposit which is not in respect of principal, such failure continues for three two (32) consecutive Business Days;
(b) any representation or warranty made or deemed made by any SPV Entity, any Originator or any Servicer (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)their respective officers) under or in connection with this Agreement or any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows information or should have known of such breach.
(b) Any representation, warranty, certification or statement made report delivered by any SPV Entity, any Originator in or any Servicer pursuant to this Agreement, Agreement or any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made andor delivered, with respect to any and such incorrect or untrue representation, warranty, certification information or statement that was so incorrect and which can be curedreport, is not cured within ten solely to the extent capable of cure, shall continue unremedied for thirty (1030) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.days;
(c) Failure of any SPV Entity, any Originator or any of its Affiliates Servicer shall fail to pay any Indebtedness when due in excess of $50,000,000; perform or the default by any Originator in the performance of observe any term, provision covenant or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit agreement under this Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid other Transaction Document (other than by any such failure which would constitute a regularly scheduled payment) prior Termination Event under another clause set forth in this definition of “Termination Event”), and such failure, solely to the date extent capable of maturity thereof.cure, shall continue unremedied for thirty (30) days;
(d) Any this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Sold Assets or Pledged Collateral, free and clear of any Adverse Claim;
(e) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any SPV Entity, any Originator or any Servicer or their respective debts, or of a substantial part of their respective assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for any SPV Entity, any Originator or any Servicer or for a substantial part of their respective assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(f) any SPV Entity, any Originator or any Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in clause (e) of this Section 9.01, (iii) apply for or consent to the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its Subsidiaries shall generally not pay its debts as assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such debts become due proceeding or shall admit in writing its inability to pay its debts generally or shall (v) make a general assignment for the benefit of creditors.
, or the board of managers (eor similar governing body) An Event of Bankruptcy shall occur with respect to any SPV Entity, any Originator or any Servicer (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of its Subsidiaries.
the actions referred to above in this clause (f) A Change or clause (e) of Control shall occur.this Section 9.01;
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, a Capital Coverage Deficit shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibilityoccur, and such judgment shall continue unsatisfied and in effect for sixty not have been cured within three (603) consecutive days without a stay Business Days following any SPV Entity’s or any Servicer’s actual knowledge or receipt of execution.notice thereof;
(h) The any Seller, any Originator or any Servicer fails to make any payment (whether of principal or interest) in respect of any Material Indebtedness when and as the same shall become due and payable, after giving effect to any period of grace specified for such payment in the agreement or instrument governing such Material Indebtedness;
(i) any event or condition exists under any Material Indebtedness of the any SPV Entity, any Originator or any Servicer that causes such Material Indebtedness to become due prior to its scheduled maturity or any event or condition exists and continues without waiver or remedy for a period of 30 days that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that no Termination Event shall arise under this clause (i) due to (i) any secured Material Indebtedness becoming due solely as a result of the voluntary sale or transfer of the assets securing such Material Indebtedness or (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof, in each case, so long as such Material Indebtedness is paid or otherwise satisfied as a result thereof within two Business Days of when due;
(j) any of the following shall occur:
(A) the average Default Ratios for any three consecutive Fiscal Months exceeds 6.004.25%;
(B) the average Delinquency Ratios for any three consecutive Fiscal Months exceeds 20.0017.50%;
(C) the average Dilution Ratios for any three consecutive Fiscal Months exceeds 6.004.50%; or
(D) the Days’ Sales Outstanding exceeds 8070 days;
(k) any SPV Entity shall be required to register as an “investment company” within the meaning of the Investment Company Act;
(l) any SPV Entity or any Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect (except to the extent resulting from an act or omission of any Purchaser Party or any of their respective Affiliates), or any of the any SPV Entity, any Originator or any Servicer (or any of their respective Affiliates) shall so state in writing;
(n) a Change in Control shall occur;
(o) Any Servicer shall resign as Servicer other than in accordance with Section 8.01(c);
(p) Any SPV Entity (or, in the case of the Limited Partnership, the general partner thereof) shall fail at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Manager) to have an Independent Manager who satisfies each requirement and qualification specified in this Agreement’s definition of “Independent Manager”;
(q) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any assets of any SPV Entity, any Originator or any Servicer, or (ii) the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA, Section 303(k) of ERISA, or 430(k) of the Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan assets of any Originator SPV Entity or any of its respective ERISA Affiliates:;
(r) (i) shall fail the occurrence of a Reportable Event; (ii) the adoption of an amendment to be funded a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (iii) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in accordance with Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard required by under Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject withdrawal or partial withdrawal of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator any SPV Entity or any of its ERISA Affiliates to provide security under Section 401(a)(29from any Multiemployer Plan; (vi) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator receipt by any SPV Entity or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any SPV Entity or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that would have a Material Adverse Effect.
Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA; (jviii) An the occurrence of a prohibited transaction with respect to the Seller or any of its ERISA Event shall have occurred thatAffiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or condition with respect to a Pension Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), that either individually or in the opinion of the Required Lendersaggregate, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could would reasonably be expected to result in liability a Material Adverse Effect;
(s) a Purchase and Sale Termination Event shall occur under any Purchase and Sale Agreement with respect to all applicable remaining Originators; or
(t) one or more judgments or decrees shall be entered against any SPV Entity, any Originator, or any Servicer, or any Subsidiary of any of the Performance foregoing involving in the aggregate a liability (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days, and the aggregate amount of all such judgments equals or exceeds $50,000,000 (or solely with respect to any SPV Entity, $15,325); then, and in any such event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the Seller (x) declare the Maturity Date to have occurred (in which case the Maturity Date shall be deemed to have occurred), and (y) declare the Aggregate Capital and all other non-contingent Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) or (f) of this Section 9.01 with respect to the Seller, the Maturity Date shall occur and the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC, PPSA and under other Applicable Law, which rights and remedies shall be cumulative. Without limiting the foregoing, the Administrative Agent may obtain from any court of competent jurisdiction an order for the appointment of an interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or of any or all of its Pledged Collateral and, by instrument in writing appoint one or more interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or any or all of its Subsidiaries Pledged Collateral with such rights, powers and authority as may be provided for in an aggregate amount the instrument of appointment or any supplemental instrument, and remove and replace any such interim receiver, receiver, manager or receiver and manager from time to time. To the extent permitted by Applicable Law, any such interim receiver, receiver, manager or receiver and manager appointed by the Administrative Agent shall (for purposes relating to responsibility for acts or omissions) be considered to be the agent of the Canadian Guarantor and not of the Administrative Agent or any of the other Secured Parties. Any proceeds from liquidation of the Sold Assets and Pledged Collateral shall be applied in excess the order of $50,000,000priority set forth in Section 3.01.
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Termination Events. The occurrence of If any one or more of the following events shall constitute (each, a “Termination Event:”) shall occur (regardless of the reason therefor):
(a) Any Originator the Borrower shall fail (i) to make any payment or deposit required hereunder of any monetary Borrower Obligation when due and, for any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) payable and the same shall remain unremedied for one (1) Business Day or more; or
(iiii) the Borrower shall fail to perform deliver a Daily Report, Weekly Report, Monthly Report or Borrowing Base Certificate as and when required hereunder and such failure shall remain unremedied for two (2) Business Days or more, (ii) any Originator shall fail or neglect to perform, keep or observe any covenant or agreement provision of Section 4.04 of the Sale Agreement or Article V of the Sale Agreement, (iii) the Borrower, any Originator or the Servicer shall fail or neglect to perform, keep or observe any covenant or other provision of this Agreement or the other Related Documents (other than as referred to any provision embodied in or covered by any other clause (i) of this paragraph Section 8.01) and the same shall remain unremedied for two (a)2) under any other Transaction Document to which it is a party and such failure shall continue for fifteen (15) consecutive days (other than Section 4.2(c), which shall be seven (7) days) after Business Days or more following the earlier to occur of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known the Borrower becoming aware of such breach.breach and the Borrower’s receipt of notice thereof; or
(bc) Any representationan Originator, warrantythe Borrower, certification the Parent or statement made by any Originator of the Parent’s other Subsidiaries shall fail to make any payment with respect to any of its Debts which, except with respect to the Borrower, is in this Agreementan aggregate principal amount exceeding $175,000,000 (other than Borrower Obligations) when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) a default or breach or other Transaction Document occurrence shall occur and be continuing under any agreement, document or instrument to which it an Originator, the Borrower, the Parent or any of the Parent’s other Subsidiaries is a party or in any by which it or its property is bound (other document delivered pursuant thereto shall prove than a Related Document) which relates to have been incorrect in any material respect when made or deemed made anda Debt which, except with respect to any such representation, warranty, certification or statement that was so incorrect and which can be curedthe Borrower, is not cured in an aggregate principal amount exceeding $175,000,000, which event shall remain unremedied within ten (10) days after the earlier of (I) applicable grace period with respect thereto, and the date such Originator receives notice effect of such default, breach from Buyer, or occurrence is to cause or to permit the Agent holder or any Lender Group Agent and (II) the date an Authorized Officer of holders then to cause such Originator knows Debt to become or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement or any such Indebtedness of an Originator or any of its Affiliates shall be declared due prior to be due and payable or required to be prepaid their stated maturity (other than by (i) secured Debt that becomes due solely as a regularly scheduled paymentresult of the sale, transfer or other disposition of the property or assets securing such Debt and (ii) prior to termination events or any other similar event under the documents governing swap contracts for so long as such event of default, termination event or other similar event does not result in the occurrence of an early termination date or any acceleration or prepayment of maturity thereof.any amounts or other Debt payable thereunder); or
(d) Any Originator a case or proceeding shall have been commenced against the Borrower, any Originator, the Parent or any of its the Parent’s other Subsidiaries seeking a decree or order in respect of any such Person under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person, and, so long as the Borrower is not a debtor in any such case or proceedings, such case or proceeding continues for 60 days unless dismissed or discharged; provided that such 60-day period shall be deemed terminated immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (d) or (y) any of the events described in Section 8.01(e) shall have occurred; or
(e) the Borrower, any Originator, the Parent or any of the Parent’s other Subsidiaries shall (i) file a petition seeking relief under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of any proceedings under any Debtor Relief Laws or any other applicable federal, state, provincial or foreign bankruptcy or similar law or to the filing of any petition thereunder or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing; or
(f) any Originator, the Borrower, Parent, or the Servicer (i) generally does not pay its debts as such debts become due or shall admit admits in writing its inability to to, or is generally unable to, pay its debts generally as such debts become due or shall make a general assignment for the benefit of creditors.
(e) An Event of Bankruptcy shall occur with respect to any Originator or any of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(h) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Tax Code with regard to any of the Receivables, Collections and/or Related Security and such lien shall continue until the earlier of (i) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISAnot Solvent; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.
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Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)
Termination Events. The occurrence of any one or more Any of the following events acts or occurrences shall constitute a Termination Event under this Agreement (each, a “Termination Event:”):
(a) Any Originator The Servicer shall fail (i) to make deposit to the Remittance Account any Collections received by the Servicer as and when required in accordance with this Agreement, or the Servicer shall fail to pay to the Lender any payment or deposit in the amount and on the date required hereunder when due andto be made in accordance with this Agreement, for and any such payment or deposit which is not in respect of principal, such failure continues for three (3) consecutive Business Days, or (ii) to perform or observe any covenant contained in Section 4.2 (other than Sections 4.2(a) and 4.2(c)) for one (1) Business Day or (iii) to perform or observe any covenant or agreement (other than as referred to in clause (i) of this paragraph (a)) under any other Transaction Document to which it is a party and such failure shall continue for more than two (2) Business Days;
(b) The Servicer shall fail to observe or perform in any respect any covenant or agreement required to be performed thereby under this Agreement or under any other Loan Document to which the Servicer is a party, and the continuance of such default or breach for a period of fifteen (15) consecutive calendar days (other than Section 4.2(c), which shall after there has been given to the Servicer a written notice specifying the default or breach and requiring it to be seven (7) days) after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach.remedied;
(bc) Any representation, warranty, certification warranty or statement of the Servicer made by any Originator in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant thereto Agreement shall prove to have been incorrect in any material respect when made respect, or deemed made and, with respect to any such representation, warranty, certification or statement that was so incorrect and which can be cured, is not cured within ten (10) days after the earlier of (I) the date such Originator receives notice of such breach from Buyer, the Agent or any Lender Group Agent and (II) the date an Authorized Officer of such Originator knows or should have known of such breach; provided, however, that the materiality threshold in the preceding clause shall not be applicable with respect to any representation, warranty, certification warranty or statement that itself contains any materiality threshold, including Material Adverse Effect.
(c) Failure of any Originator or any of its Affiliates to pay any Indebtedness when due in excess of $50,000,000; or the default by any Originator in the performance of any term, provision or condition contained in Sections 6.01A, 6.05A, 6.06A, 6.08A, 6.11A, 6.13A, 6.14A, 6.15A or 6.16A of the Senior Credit Agreement Servicer in any certificate, report or other statement, in writing or orally, delivered to any party hereto shall not satisfy the standard applicable to such Indebtedness representation or warranty as set forth in Section 5.1(k) of an Originator or any of its Affiliates shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.this Agreement;
(d) Any Originator The Servicer or any of its Subsidiaries Encore Capital Group shall generally not pay its debts as such debts be or become due insolvent, or shall admit in writing its inability to pay its debts generally as they mature, or shall make a general assignment for the benefit of creditors.
(e) An Event ; or the Servicer or Encore Capital Group shall apply for or consent to the appointment of Bankruptcy shall occur with respect to any Originator receiver, trustee, or similar officer for it or for all or any substantial part of its Subsidiaries.
(f) A Change of Control shall occur.
(g) One property; or more final judgments for the payment of money in an amount in excess of $50,000,000such receiver, individually trustee or in the aggregate, similar officer shall be entered appointed without the application or consent of the Servicer or Encore Capital Group and shall not be discharged within sixty (60) days of appointment; or the Servicer or Encore Capital Group shall institute (by petition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer or Encore Capital Group; or any Originator on claims not covered by insurance judgment, writ, warrant of attachment or as to which execution or similar process shall be issued or levied against a substantial part of the insurance carrier has denied its responsibility, property of the Servicer or Encore Capital Group and such judgment shall continue unsatisfied and in effect remain unstayed or undismissed for sixty (60) consecutive days without a stay of execution.
days; (he) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of A voluntary petition naming the Tax Servicer or Encore Capital Group, as debtor, is filed under the United States Bankruptcy Code, or an involuntary petition naming the Servicer or Encore Capital Group, as debtor, is filed under the United States Bankruptcy Code with regard to any of the Receivables, Collections and/or Related Security and such lien involuntary petition shall continue until the earlier of remain undismissed for sixty (i60) seven (7) days after inception and (ii) knowledge by any Secured Party of such lien, or the PBGC shall impose a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables, Collections and/or Related Security.
(i) Any Plan of any Originator or any of its respective ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or within the five years preceding the Closing Date, has been, terminated or the subject of termination proceedings under Section 4041(c) of ERISA; or
(iii) shall require such Originator or any of its ERISA Affiliates to provide security under Section 401(a)(29) or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to such Originator or any of its ERISA Affiliates under applicable law, or Title IV ERISA other than a liability for PBGC premiums due but not delinquent under Section 4007 of ERISA, and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or a Plan that would have a Material Adverse Effect.
(j) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred for all periods and are then outstanding, could reasonably be expected to result in liability of the Performance Guarantor or any of its Subsidiaries in an aggregate amount in excess of $50,000,000.days;
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