Wind-Down Events. The CDS Program shall commence winding down in accordance with Section 12.2 upon the occurrence of any of the events (each, a “Wind-Down Event”) expressly described below: (a) the failure of the Capital Model to operate (i) in all material respects in a manner consistent with past practice and such failure directly or indirectly causes the business of the Company as a whole to be materially adversely disrupted, and such failure is not remedied on or before the 30th Business Day after the occurrence of such failure or (ii) in compliance with the ▇▇▇▇▇'▇ Technical Document or S&P Technical Document, and such failure is not remedied on or before the 135th Business Day after the occurrence of such failure; (b) the Company or Holdings becomes (or is required to become) a registered “investment company” under the Investment Company Act; (c) any event that makes it unlawful to carry on the business of the Company; (d) (i) the Company fails to pay when due any amount due under any Debt Facility and such failure is not remedied on or before the fifth Business Day after the Company receives notice of such failure; (ii) any “Event of Default” as defined in the Senior Facility or the Mezzanine Facility shall have occurred and not have been waived or cured as permitted under such Debt Facility; or (iii) any indebtedness under any Debt Facility becomes due prior to its scheduled maturity for any reason; (i) the Managing Member willfully violates, or takes any action that it knows breaches, any material provision of any Program Document, and any such violation or action could reasonably be expected to result in a Material Adverse Effect, (ii) the Managing Member materially breaches any provision of any Program Document or any representation made by the Managing Member shall prove to have been incorrect when made in any material respect, and within 30 days of its becoming aware of such breach, or such incorrect representation, the Managing Member fails to cure such breach or (iii) the Managing Member commits fraud or criminal activity, or exercises gross negligence that has an adverse effect on the Company, in the performance of its obligations under this Agreement or the Managing Member is indicted for a criminal offense related to its primary businesses; (f) twenty (20) Business Days pass after the discovery of a Program Violation, during which period the Company fails to (i) take commercially reasonable steps to remediate all of the adverse consequences, if any, of such Program Violation and (ii) take commercially reasonable steps to avoid a recurrence of similar types of Program Violations; (g) the occurrence of a Bankruptcy Event with respect to the Company, Holdings or the Managing Member; (h) (i) the Company shall fail to observe or perform any covenant, condition or agreement contained in Section 2.10 or (ii) except as otherwise provided in this Section 12.1, the Company shall fail to observe or perform in a material respect any other covenant, condition or agreement contained in this Agreement and such failure shall continue unremedied for a period of 30 or more Business Days after notice thereof to the Company; (i) any Custodian shall fail to observe or perform any covenant, condition or agreement contained in a Custody Agreement and such failure shall continue unremedied by the Custodian (which includes a successor Custodian under a Custody Agreement to which all cash and property held by the defaulting custodian under such Custody Agreement has been transferred) for a period of 10 or more days after notice thereof to the Custodian; or (ii) if within thirty (30) days from the date on which a current Custodian does not meet the Custodian Ratings Criteria such Custodian shall not have (x) been replaced with a Custodian that satisfies the Custodian Ratings Criteria or (y) obtained a guaranty of a Person that satisfies the Custodian Ratings Criteria; (j) three Business Days pass after the occurrence of any Net Loss Trigger Event, during which period the Company does not receive capital contributions from Holdings in amounts such that, if such amounts had been received prior to the occurrence of such Net Loss Trigger Event, such Net Loss Trigger Event would not have occurred; (k) thirty (30) days pass after the occurrence of any Minimum Capital Requirement Event, during which period the Company does not receive capital contributions in amounts such that, if such amounts had been received prior to the occurrence of such Minimum Capital Requirement Event, such Minimum Capital Requirement Event would not have occurred; (l) [reserved]; (i) the Company’s counterparty rating is not at least "A" by S&P; or (ii) the obligations in respect of the Senior Facility are not rated at least "A" by S&P and "A2" by ▇▇▇▇▇'▇; or (iii) the obligations in respect of the Mezzanine Facility are not rated at least "BB-" by S&P and "Baa3" by ▇▇▇▇▇'▇; (n) [reserved]; (o) the Company fails to pay when due any amount due to any counterparty under any CDS and such failure is not remedied within the applicable grace period specified in such CDS; (p) the Company shall fail to comply with Section 9.2(a)(ii) and such failure continues for one hundred twenty (120) or more days; (q) the Company shall fail to comply with Section 9.2(a)(viii) and such failure continues for sixty (60) or more Business Days; (r) the Company makes a distribution to Members that is not permitted under this Agreement and such distribution (or an equivalent amount) is not returned to the Company within thirty (30) Business Days; and (s) the Company invests Cash held in or credited to an Account in an investment that is not a Permitted Investment and such investment is not liquidated within thirty (30) Business Days.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Centerline Holding Co)
Wind-Down Events. The CDS Program shall commence winding down in accordance with Section 12.2 upon the occurrence of any Each of the following events (each, shall constitute a “Wind-Down Event”) expressly described below” within the meaning of this Receivables Purchase Agreement:
(a) The occurrence of any Event of Termination under the failure Sale Agreement or any ING Wind-Down Event; or
(b) The Servicer (if the Seller or any Affiliate of the Capital Model Seller) shall fail to operate perform or observe any term, covenant or agreement hereunder (iother than as referred to in clause (ii) in all material respects in a manner consistent with past practice of this Section 7.01(b)) and such failure directly or indirectly causes shall remain unremedied for three Business Days after written notice from the business of the Company as a whole to be materially adversely disrupted, and such failure is not remedied on or before the 30th Business Day after the occurrence of such failure Collateral Agent or (ii) either the Servicer (if the Seller or any Affiliate of the Seller) or the Seller shall fail to make any payment or deposit to be made by it hereunder when due and, solely in compliance with the ▇▇▇▇▇'▇ Technical Document case of any such payments which do not constitute payments of Capital or S&P Technical DocumentYield, and such failure is not remedied on or before shall remain unremedied for three (3) Business Days after written notice from the 135th Business Day after the occurrence of such failure;
(b) the Company or Holdings becomes (or is required to become) a registered “investment company” under the Investment Company Act;Collateral Agent; or
(c) The Seller shall fail to perform or observe any event that makes it unlawful to carry on term, covenant or agreement contained in Section 5.03 and any such failure shall remain unremedied for five (5) Business Days after written notice from the business of the Company;Collateral Agent; or
(d) (i) the Company fails Any representation or warranty made or deemed to pay when due any amount due under any Debt Facility and such failure is not remedied on or before the fifth Business Day after the Company receives notice of such failure; (ii) any “Event of Default” as defined in the Senior Facility or the Mezzanine Facility shall have occurred and not have been waived or cured as permitted under such Debt Facility; or (iii) any indebtedness under any Debt Facility becomes due prior to its scheduled maturity for any reason;
(i) the Managing Member willfully violates, or takes any action that it knows breaches, any material provision of any Program Document, and any such violation or action could reasonably be expected to result in a Material Adverse Effect, (ii) the Managing Member materially breaches any provision of any Program Document or any representation made by the Managing Member Seller (or any of its officers) under or in connection with this Receivables Purchase Agreement, any Settlement Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect when made in any material respectrespect when made; provided, and however, that (i) to the extent any breach of any such representation or warranty may be cured within 30 days of its becoming aware of such breach, or such incorrect representationten (10) Business Days, the Managing Member fails to cure such breach or Seller shall have ten (iii) the Managing Member commits fraud or criminal activity, or exercises gross negligence that has an adverse effect on the Company, in the performance of its obligations under this Agreement or the Managing Member is indicted for a criminal offense related to its primary businesses;
(f) twenty (2010) Business Days pass after the discovery of a Program Violation, during which period the Company fails to (i) take commercially reasonable steps to remediate all of the adverse consequences, if any, learning of such Program Violation breach to make such representation and warranty true and correct and (ii) take commercially reasonable steps if any such false or incorrect representation or warranty has given rise to avoid a recurrence deemed Collection as provided under Section 2.04 of similar types this Receivables Purchase Agreement, then, upon the Seller’s payment of Program Violations;such deemed Collection at the time and in the manner required under this Receivables Purchase Agreement, the breach of such representation or warranty shall not give rise to a Wind-Down Event under this subsection (d); or
(ge) the occurrence of a Bankruptcy Event with respect to the Company, Holdings or the Managing Member;
(h) (i) the Company The Seller shall fail to perform or observe or perform any covenant, condition or agreement contained in Section 2.10 or (ii) except as otherwise provided in this Section 12.1, the Company shall fail to observe or perform in a material respect any other covenantterm, condition covenant or agreement contained in this Receivables Purchase Agreement on its part to be performed or observed and any such failure shall continue remain unremedied for a period of 30 or more ten (10) Business Days after written notice thereof from the Collateral Agent (it being understood that if any such failure gives rise to a deemed Collection under Section 2.04 of this Receivables Purchase Agreement, then, the payment of such deemed Collection at the time and in the manner required under this Receivables Purchase Agreement shall be deemed a remedy of such failure); or
(f) The interest of the Collateral Agent in the Purchased Assets shall for any reason, except to the Company;extent permitted by the terms hereof, cease to create a valid and perfected first priority interest in such Purchased Assets; provided, however, if any such failure results in a deemed Collection under Section 2.04 of this Receivables Purchase Agreement and the Seller satisfies in full its payment obligations under such section with respect to such deemed Collection, then such failure shall not give rise to a Wind-Down Event under this subsection (f) and such payment by the Seller shall be deemed a remedy of such failure; or
(i) any Custodian An Insolvency Event shall fail to observe or perform any covenant, condition or agreement contained in a Custody Agreement and such failure shall continue unremedied by the Custodian (which includes a successor Custodian under a Custody Agreement to which all cash and property held by the defaulting custodian under such Custody Agreement has been transferred) for a period of 10 or more days after notice thereof occur with respect to the Custodian; Seller or (ii) if within thirty (30) days from the date on which a current Custodian does not meet the Custodian Ratings Criteria such Custodian shall not have (x) been replaced with a Custodian that satisfies the Custodian Ratings Criteria or (y) obtained a guaranty of a Person that satisfies the Custodian Ratings Criteria;
(j) three Business Days pass after the occurrence of any Net Loss Trigger Event, during which period the Company does not receive capital contributions from Holdings in amounts such that, if such amounts had been received prior to the occurrence of such Net Loss Trigger Event, such Net Loss Trigger Event would not have occurred;
(k) thirty (30) days pass after the occurrence of any Minimum Capital Requirement Event, during which period the Company does not receive capital contributions in amounts such that, if such amounts had been received prior to the occurrence of such Minimum Capital Requirement Event, such Minimum Capital Requirement Event would not have occurred;
(l) [reserved];
(i) the Company’s counterparty rating is not at least "A" by S&P; Originator or (ii) the obligations in respect Seller or the Originator shall take any corporate action to authorize the filing of any Insolvency Proceeding; or
(h) As of the Senior Facility are not rated at least "A" by S&P and "A2" by ▇▇▇▇▇'▇close of business on any Settlement Date, the Capital Limit shall be less than the aggregate outstanding Capital; or or
(iiii) the obligations in respect The Originator shall cease to own 100% of the Mezzanine Facility are not rated at least "BB-" by S&P issued and "Baa3" by ▇▇▇▇▇'▇;outstanding membership interests in the Seller; or
(nj) [reserved];There shall have occurred, since the initial Receivables Purchase Date, a material adverse change in the financial condition of the Seller or there shall have occurred any event which materially and adversely affects the collectibility or the Receivables generally or the ability of the Seller to perform hereunder; or
(ok) Any Purchaser or the Company fails Insurer shall determine that continuation of this Receivables Purchase Agreement without exercise of remedies under Section 7.02 will impose a material adverse regulatory impact on such Purchaser or the Insurer, as the case may be; or
(l) The occurrence of any Insurer Default; or
(m) The Insurer shall have received written notification from either Rating Agency that the transactions evidenced hereby (without giving effect to pay when due any amount due the Policies) are rated less than BBB or Baa2, as the case may be, and the Seller and Servicer have not, within 30 days of such notification, executed such amendments and/or taken all other steps requested by the Insurer or otherwise required by the Rating Agencies to ensure that the transactions will be rated not less than BBB and Baa2 (it being understood, however, that, in the event the Insurer receives notification from a Rating Agency that the transactions evidenced hereby are rated BBB or Baa2 or better, this clause (m) shall not be applicable with respect to any counterparty under any CDS and subsequent notification of a downgrade the Insurer may receive from such failure is not remedied within the applicable grace period specified in such CDS;
(p) the Company shall fail to comply with Section 9.2(a)(ii) and such failure continues for one hundred twenty (120) or more days;
(q) the Company shall fail to comply with Section 9.2(a)(viii) and such failure continues for sixty (60) or more Business Days;
(r) the Company makes a distribution to Members that is not permitted under this Agreement and such distribution (or an equivalent amount) is not returned to the Company within thirty (30) Business Days; and
(s) the Company invests Cash held in or credited to an Account in an investment that is not a Permitted Investment and such investment is not liquidated within thirty (30) Business DaysRating Agency.
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