Common use of Designated Events and Termination Events Clause in Contracts

Designated Events and Termination Events. Each of the following shall constitute a “Designated Event”: (a) the Borrower shall fail to pay (i) within two (2) Business Days after the same becomes due, any amount of principal, interest or any Fees payable hereunder, (ii) any Funding Excess for a period of two Business Days, or (iii) within five (5) Business Days after the same becomes due, any other amount payable hereunder or with respect to any other Transaction Document; or (i) the Borrower shall fail or neglect to perform, keep or observe any requirement set forth in Sections 5.01(b) or 5.02 of this Agreement, (ii) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any requirement set forth in Section 5.01(c) or 5.03 of this Agreement and the same shall remain unremedied for two (2) Business Days after the date specified for performance of any such requirement or (iii) the Borrower shall fail or neglect to perform, keep or observe any other covenant or other provision of this Agreement or the other Transaction Documents (other than any provision embodied in or covered by any other clause of this Section 8.01) and the same shall remain unremedied for thirty (30) 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 (i) a Seller, 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 $50,000,000 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 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 a Indebtedness which, except with respect to the Borrower, is in an aggregate principal amount in excess of $50,000,000, 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 Indebtedness to become or be declared due prior to their stated maturity; or (d) a case or proceeding shall have been commenced against the Borrower, any Seller, the Servicer 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 60 days unless dismissed or discharged; provided, however, 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 Seller, 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 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 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 or limited liability company action in furtherance of any of the foregoing; or (f) any Seller, the Borrower, the Parent or the Servicer (i) generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) is not Solvent; or

Designated Events and Termination Events. Each of the following shall constitute a “Designated Event”: (a) the Borrower shall fail to pay (i) within two (2) Business Days after the same becomes due, any amount of principal, interest or any Fees payable hereunder, (ii) any Funding Excess for a period of two Business Days, or (iii) within five (5) Business Days after the same becomes due, any other amount payable hereunder or with respect to any other Transaction Document; or (b) (i) the Borrower shall fail or neglect to perform, keep or observe any requirement set forth in Sections 5.01(b) or 5.02 of this Agreement, (ii) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any requirement set forth in Section 5.01(c) or 5.03 of this Agreement and the same shall remain unremedied for two (2) Business Days after the date specified for performance of any such requirement or (iii) the Borrower shall fail or neglect to perform, keep or observe any other covenant or other provision of this Agreement or the other Transaction Documents (other than any provision embodied in or covered by any other clause of this Section 8.01) and the same shall remain unremedied for thirty (30) 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 (i) a Seller, 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 $50,000,000 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 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 a Indebtedness which, except with respect to the Borrower, is in an aggregate principal amount in excess of $50,000,000, 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 Indebtedness to become or be declared due prior to their stated maturity; or (d) a case or proceeding shall have been commenced against the Borrower, any Seller, the Servicer 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 60 days unless dismissed or discharged; provided, however, 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 Seller, 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 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 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 or limited liability company action in furtherance of any of the foregoing; or (f) any Seller, the Borrower, the Parent or the Servicer (i) generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) is not Solvent; or

Designated Events and Termination Events. Each of the following shall constitute a “Designated Event”: (a) the Borrower shall fail to pay (i) within two (2) Business Days after the same becomes due, any amount of principal, interest or any Fees payable hereunder, (ii) any Funding Excess for a period of two Business Days, or (iii) within five (5) Business Days after the same becomes due, any other amount payable hereunder or with respect to any other Transaction Document; or (i) the Borrower shall fail or neglect to perform, keep or observe any requirement set forth in Sections 5.01(b) or 5.02 of this Agreement, (ii) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any requirement set forth in Section 5.01(c) or 5.03 of this Agreement and the same shall remain unremedied for two (2) Business Days after the date specified for performance of any such requirement or (iii) the Borrower shall fail or neglect to perform, keep or observe any other covenant or other provision of this Agreement or the other Transaction Documents (other than any provision embodied in or covered by any other clause of this Section 8.01) and the same shall remain unremedied for thirty (30) 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 (i) a Seller, 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 $50,000,000 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 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 a Indebtedness which, except with respect to the Borrower, is in an aggregate principal amount in excess of $50,000,000, 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 Indebtedness to become or be declared due prior to their stated maturity; or (d) a case or proceeding shall have been commenced against the Borrower, any Seller, the Servicer 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 60 days unless dismissed or discharged; provided, however, 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 Seller, 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 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 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 or limited liability company action in furtherance of any of the foregoing; or (f) any Seller, the Borrower, the Parent or the Servicer (i) generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) is not Solvent; or (g) a final judgment or judgments for the payment of money in excess of $50,000,000 in the aggregate (net of insurance proceeds) at any time outstanding shall be rendered against any Seller, the Servicer or the Parent 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 (h) a final judgment or judgments for the payment of money in an aggregate amount in excess of $25,000 shall be rendered against the Borrower and such judgment or judgments shall not have been discharged or bonded pending appeal within 30 days after the entry of such judgment or judgments; provided any surety or bonding agency providing any such bond is acceptable to the Administrative Agent in its commercially reasonable credit judgment (the determination of which by the Administrative Agent shall not be unreasonably withheld or delayed); or (i) (i) any information contained in any Borrowing Base Certificate or any Borrowing Request is untrue or incorrect in any respect other than an Immaterial Misstatement, or (ii) any representation or warranty of 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 or any Borrowing Request) made or delivered by or on behalf of such Seller, 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 (j) 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 Parent or any of their respective ERISA Affiliates (other than a Lien (i) limited by its terms to assets other than Receivables and (ii) that could 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 (k) any event shall have occurred that, alone or together with other events, has a Material Adverse Effect; or (l) 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 Secured Parties) shall cease to hold a first priority, perfected Lien in the Transferred Receivables or any of the Borrower Collateral; or (n) a Change of Control shall occur; or (o) the Borrower shall amend its certificate of formation or limited liability company agreement, other than in accordance with Section 5.03(e); or (p) (i) the Defaulted Receivable Trigger Ratio shall exceed 25%; (ii) the Delinquency Trigger Ratio shall exceed 35%; (iii) the Dilution Trigger Ratio shall exceed 7.25%; or (iv) the Turnover Days Ratio shall exceed 82.5 days; or (q) any material provision of any Transaction Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms (or any Seller 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 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); or (r) the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries, determined as of any date on the table set forth below, shall be less than the ratio set forth opposite such date on the table set forth below: December 31, 2012 2.10: 1.00 March 31, 2013 2.10: 1.00 June 30, 2013 2.10: 1.00 September 30, 2013 2.10: 1.00 December 31, 2013 2.20: 1.00 March 31, 2014 2.20: 1.00 June 30, 2014 2.20: 1.00 September 30, 2014 2.20: 1.00 December 31, 2014 2.20: 1.00 March 31, 2015 2.20: 1.00 June 30, 2015 2.20: 1.00 September 30, 2015 2.20: 1.00 December 31, 2015 2.20: 1.00 March 31, 2016 2.20: 1.00 June 30, 2016 2.20: 1.00 September 30, 2016 2.20: 1.00 December 31, 2016 2.20: 1.00 March 31, 2017 2.20: 1.00 June 30, 2017 2.20: 1.00 September 30, 2017 2.20: 1.00 December 31, 2017 2.20: 1.00