Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur: (a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due; (b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days; (c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof; (d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered; (e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral; (f) An Event of Bankruptcy shall occur with respect to any Transaction Party; (g) A Servicer Default shall occur;
Appears in 5 contracts
Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC)
Events of Termination. If Event of Termination" means the occurrence of any of the following events (each, an “Event of Termination”) shall occurfollowing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, Any failure by the Servicer or any Performance Guarantor shall fail the Seller to make any payment or deposit required to be made by it hereunder or in the Transfer and Sale Agreement (or in any Subsequent Purchase Agreement or Subsequent Transfer Agreement) and the continuance of such failure for a period of four Business Days after the date on which such payment or deposit was due;
(b) Failure on the Servicer's or the Seller's part to observe or perform in any material respect any covenant or agreement in this Agreement or in the Transfer and Sale Agreement (or in any Subsequent Purchase Agreement or Subsequent Transfer Agreement) (other than as described a covenant or agreement, the breach of which is specifically addressed elsewhere in clause (athis Section) above) or under any other Facility Document when due and which continues unremedied for 30 days after the date on which such failure shall continue unremedied for three (3) Business Dayscommences;
(c) The Borrower, the Originator, Any assignment by the Servicer or the Seller of its duties or rights hereunder or under the Transfer and Sale Agreement (or under any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Subsequent Purchase Agreement or any other Facility Document on its part to be performed Subsequent Transfer Agreement), except as specifically permitted hereunder or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrowerthereunder, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofattempt to make such an assignment;
(d) Any representation An involuntary case under any applicable bankruptcy, insolvency or warranty made or deemed to be made by the Borrower, the Originator, other similar law shall have been commenced in respect of the Servicer or Trust Depositor and shall not have been dismissed within 90 days, or a court having jurisdiction in the premises shall have entered a decree or order for relief in respect of either the Servicer or Trust Depositor in an involuntary case under any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Reportapplicable bankruptcy, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request insolvency or other information similar law now or report delivered pursuant heretohereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) shall prove to have been materially false of either the Servicer or incorrect (except that the materiality standard in this clause (d) shall not apply to Trust Depositor, or for any such representation substantial liquidation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or deliveredwinding up of their respective affairs;
(e) The Program AgentServicer or Trust Depositor shall have commenced a voluntary case under any applicable bankruptcy, on behalf insolvency or other similar law now or hereafter in effect, or shall have consented to the entry of an order for relief in an involuntary case under any such law, or shall have consented to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of the Secured PartiesServicer or Trust Depositor, as the case may be, or for any substantial part of their respective property, or shall cease to have a valid and perfected first priority security interest made any general assignment for the benefit of their respective creditors, or shall have failed to, or admitted in writing its inability to, pay its debts as they become due, or shall have taken any corporate action in furtherance of the Pledged Contracts and Collections with respect thereto or any other Collateralforegoing;
(f) An Event Any failure by the Servicer to deliver to the Trustees the Monthly Report pursuant to the terms of Bankruptcy shall occur with respect to any Transaction Partythis Agreement which remains uncured for five Business Days after the date which such failure commences;
(g) A Any representation, warranty or statement of the Servicer Default made in this Agreement, in any Subsequent Transfer Agreement or any certificate, report or other writing delivered pursuant hereto shall occur;prove to be incorrect in any material respect as of the time when the same shall have been made and the incorrectness of such representation, warranty or statement has a material adverse effect on the Trust and, within 30 days after written notice thereof shall have been given to the Servicer or the Trust Depositor by the Indenture Trustee, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Harley Davidson Customer Funding Corp), Sale and Servicing Agreement (Harley Davidson Customer Funding Corp), Sale and Servicing Agreement (Harley Davidson Customer Funding Corp)
Events of Termination. If any of the Events of Termination set forth in Exhibit V hereto shall occur and be continuing, the Required Purchaser Agents (or, in the case of Events of Termination described in paragraphs (b), (f) and (i) of Exhibit V, the Administrative Agent or the Required Purchaser Agents) may, by notice to the Seller, take either or both of the following events actions: (eachx) declare the Facility Termination Date and the Commitment Termination Date to have occurred (in which case the Facility Termination Date and the Commitment Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed the then current Collection Agent as the Collection Agent; provided that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of Exhibit V, the Facility Termination Date and the Commitment Termination Date shall occur; provided, further, that if an “Event of Termination”Termination described in paragraph (n) of Exhibit V shall occur (or if the Seller or any Purchaser Agent believes that any such Event of Termination is reasonably likely to occur:
) and the Seller cannot otherwise remedy the circumstance which gives rise to the Event of Termination in a manner reasonably satisfactory to the Seller, the Administrative Agent and the Purchaser Agents, then the Administrative Agent and the Purchaser Agents may, in their sole and absolute discretion, negotiate in good faith to restructure the terms of the transactions contemplated by this Agreement in such a manner as may be required so that, in the reasonable determination of the Seller, the Administrative Agent and each of the Purchaser Agents, the transactions contemplated by this Agreement, as restructured, would not result in an Event of Termination described in paragraph (n) of Exhibit V. Upon any such declaration or designation or upon any such automatic termination, the Investors, the Banks, the Administrative Agent and each Purchaser Agent shall have (a) The Borrower shall fail to make any payment (x) of principal in respect the rights of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) Seller as “Buyer” under the Purchase Agreement and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrowerin addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the OriginatorUCC of the appropriate jurisdiction or jurisdictions and under other applicable law, which rights and remedies shall be cumulative. Any Event of Termination may be waived in writing by the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (Required Purchaser Agents other than as (i) the Events of Termination described in clause paragraphs (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrowerb), the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An and (i) of Exhibit V, which shall require the waiver in writing of the Required Purchaser Agents and the Administrative Agent and (ii) the Event of Bankruptcy shall occur with respect to any Transaction Party;
Termination described in paragraph (g) A Servicer Default shall occur;of Exhibit V, which cannot be waived.
Appears in 4 contracts
Samples: Assignment and Acceptance Agreement and Amendment (United Rentals North America Inc), Receivables Purchase Agreement (United Rentals North America Inc), Receivables Purchase Agreement (United Rentals North America Inc)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
occur (a) The Borrower shall fail to make provided, however, that the occurrence of any payment (x) of principal in respect of the Loans when due events described in clauses (whether at stated maturityb), upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of fundsc), (d) or (yo) below with respect to one or more Pool Receivables shall not constitute an Event of Interest on Termination if, after such Pool Receivable(s) are removed from the Loans or Liquidity Fees when due;calculation of Net Receivable Balance, no Borrowing Base Default shall exist):
(bi) The Borrower, the Originator, the Servicer or any Performance Guarantor Any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document to the Borrower, the Administrative Agent or any Secured Party when due and such failure payment shall continue unremedied for three not be deemed to have been timely made or (3ii) Business Daysthe Servicer shall fail to deliver a Borrowing Base Certificate as required by Section 2.03(a);
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Any Loan Party shall fail to perform or observe breach any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, unless otherwise obtains knowledge thereofprovided in this Section 7.01);
(dc) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor Loan Party under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio ReportBorrowing Request, any Borrowing Base Certificate, any Borrowing Letter of Credit Request or other information or report delivered pursuant hereto) shall shall, after expiration of any applicable cure period, prove to have been materially false or incorrect (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ed) The Program Administrative Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts Pool Receivables and the Related Security and Collections with respect thereto or any other Collateral;
(fe) An Event of Bankruptcy shall occur with respect to any Transaction Loan Party;
(gf) A Servicer Default Material Adverse Effect shall occuroccur with respect to any Loan Party or the Pool Receivables;
Appears in 4 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Events of Termination. If any of the following events (eachany such event, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of Collection Agent or the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transferor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) five Business Days;; or
(b) Any representation or warranty made or deemed to be made by the Transferor or the Collection Agent (or any of their respective officers or agents) under or in connection with any Document, including any Monthly Report other than with respect to the status of a Receivable as an Eligible Receivable or any other information, report or officer’s certificate delivered pursuant hereto, shall prove to have been false, incorrect or misleading in any material respect when made or deemed made, unless and solely to the extent (i) such representation or warranty does not contain a grace period within such provision, and (ii) such misrepresentation is capable of being cured within 10 days, the Collection Agent or the Transferor delivers a written certificate to the Company certifying that such false, incorrect or misleading statement, and all ramifications thereof under this Agreement or any Document has been cured in full (together with such data demonstrating such cure) by earlier to occur of (x) the date on which written notice shall have been given to the Transferor and (y) the date on which a Responsible Officer of the Collection Agent or the Transferor acquires knowledge thereof; or
(c) The Borrower, Transferor or the Originator, the Servicer or any Performance Guarantor Collection Agent shall fail to perform or observe observe, beyond the applicable grace or cure period therein, any term, covenant or agreement (other than any term, covenant or agreement described in another clause of this Section 7.01) contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure (other than a failure with respect to any of Section 5.01(d) and (i), in each case, as to which no grace period shall apply) shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given by the Company to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableTransferor, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document shall cease to be effective or be a legally valid, binding and enforceable obligation of the Company, the Transferor or the Collection Agent, as the case may be or any of their respective Affiliates shall contest in any manner the effectiveness, validity, binding nature or enforceability of this Agreement or any other Document; or
(including d) (i) The Transferor, the Parent or the Collection Agent shall fail to pay any Monthly Reportprincipal, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request interest or other information amount due in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period) or report delivered pursuant hereto(ii) shall prove any other event or condition occurs that results in any Material Indebtedness becoming due prior to have been materially false its scheduled maturity or incorrect that enables or permits (except after giving effect to any grace period) 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 that results in the materiality standard in termination or permits any counterparty to terminate any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, the obligations under which constitute Material Indebtedness; provided that this clause (dii) shall not apply to any secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Debt; or
(e) The Program AgentEither (i) any Transfer shall, on behalf of for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create with the Company a valid and perfected first priority security ownership interest in the Pledged Contracts and Collections Transferred Property with respect thereto free and clear of any Lien (other than Permitted Liens referred to in clause (b) of the definition thereof and, during the continuance of the time period specified in Section 5.01(p), the Xxx County Lien), which shall remain unremedied for five Business Days after the earlier of delivery of notice thereof by the Company or discovery thereof by the Collection Agent or the Transferor or (ii) this Agreement shall for any reason cease to evidence the transfer to the Company of legal and equitable title to, and ownership of, the Transferred Property; or
(i) The Transferor, the Parent or the Collection Agent shall (A) become insolvent, 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; (B) any Insolvency Proceeding or any other Collateral;
proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted by the Transferor, the Parent or the Collection Agent or (fC) An Event any Insolvency Proceeding or any other proceeding seeking the entry of Bankruptcy an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall occur with respect to be instituted against any Transaction Party;the Transferor, the Parent or the Collection Agent, and such other proceeding shall remain unstayed for a period of 60 days, or the requested adjudication, relief or other action sought thereby shall have been made, granted or taken, or (ii) the Transferor, the Parent or the Collection Agent shall take any corporate or entity-level action that authorizes any of the actions set forth above in this Section 7.01(f); or
(g) There shall have occurred and be continuing an “Event of Default” under the Loan Agreement; or
(h) There shall have occurred and be continuing an “Event of Termination” under the Sale Agreement; or
(i) There shall have occurred a Change in Control; or
(j) There shall have occurred any material adverse change in the business or financial condition of the Transferor since December 31, 2011, which could reasonably be expected to affect the value or collectability of the Receivables or the ability of the Company, the Collection Agent or the Transferor to collect the Receivables or otherwise perform its respective obligations under this Agreement or any other Document; or
(k) A Servicer Default Termination Event shall occur;have occurred and be continuing; or
(l) The Transferor or the Company shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act; or
(m) One or more judgments shall be rendered against the Transferor, the Collection Agent, the Company or the Parent or any combination thereof (to the extent not paid or fully covered by insurance) and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Transferor, the Collection Agent, the Company or the Parent to enforce any such judgment and such judgment is for the payment of money in an aggregate amount in excess of $50,000,000; or
(n) An ERISA Event shall have occurred that, in the opinion of the Company, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Parent and its ERISA Affiliates in an aggregate amount exceeding $50,000,000; then, and in any such event, the Company may, by notice to the Transferor (a “Termination Declaration Notice”) declare the Termination Date to have occurred, except that, in the case of any event described in clause (i)(B) or clause (i)(C) of Section 7.01(f) above or any event described in Section 7.01(d) above, the Termination Date shall be deemed to have occurred automatically without notice upon the occurrence of such event.
Appears in 4 contracts
Samples: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment prepayment);
(pursuant b) The Borrower shall fail to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) make any payment of Interest on the Loans or Liquidity Fees when due;
(bc) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) or (b) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(cd) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(de) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request Request, or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (de) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ef) The Program AgentLender, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(fg) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(gh) A Servicer Default shall occuroccur (other than pursuant to clause (g) of the definition thereof);
Appears in 4 contracts
Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)
Events of Termination. If any of the following events (eachany such event, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of Collection Agent or the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transferor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) five Business Days;; or
(b) Any representation or warranty made or deemed to be made by the Transferor or the Collection Agent (or any of their respective officers or agents) under or in connection with any Document, including any Monthly Report other than with respect to the status of a Receivable as an Eligible Receivable or any other information, report or officer’s certificate delivered pursuant hereto, shall prove to have been false, incorrect or misleading in any material respect when made or deemed made, unless and solely to the extent (i) such representation or warranty does not contain a grace period within such provision, and (ii) such misrepresentation is capable of being cured within 10 days, the Collection Agent or the Transferor delivers a written certificate to the Company certifying that such false, incorrect or misleading statement, and all ramifications thereof under this Agreement or any Document has been cured in full (together with such data demonstrating such cure) by earlier to occur of (x) the date on which written notice shall have been given to the Transferor and (y) the date on which a Responsible Officer of the Collection Agent or the Transferor acquires knowledge thereof; or
(c) The Borrower, Transferor or the Originator, the Servicer or any Performance Guarantor Collection Agent shall fail to perform or observe observe, beyond the applicable grace or cure period therein, any term, covenant or agreement (other than any term, covenant or agreement described in another clause of this Section 7.01) contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure (other than a failure with respect to any of Section 5.01(d) and (i), in each case, as to which no grace period shall apply) shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given by the Company to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableTransferor, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document shall cease to be effective or be a legally valid, binding and enforceable obligation of the Company, the Transferor or the Collection Agent, as the case may be or any of their respective Affiliates shall contest in any manner the effectiveness, validity, binding nature or enforceability of this Agreement or any other Document; or
(including d) (i) The Transferor, the Parent or the Collection Agent shall fail to pay any Monthly Reportprincipal, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request interest or other information amount due in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period) or report delivered pursuant hereto(ii) shall prove any other event or condition occurs that results in any Material Indebtedness becoming due prior to have been materially false its scheduled maturity or incorrect that enables or permits (except after giving effect to any grace period) 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 that results in the materiality standard in termination or permits any counterparty to terminate any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, the obligations under which constitute Material Indebtedness; provided that this clause (dii) shall not apply to any secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Debt; or
(e) The Program AgentEither (i) any Transfer shall, on behalf of for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create with the Company a valid and perfected first priority security ownership interest in the Pledged Contracts and Collections Transferred Property with respect thereto free and clear of any Lien (other than Permitted Liens referred to in clause (b) of the definition thereof), which shall remain unremedied for five Business Days after the earlier of delivery of notice thereof by the Company or discovery thereof by the Collection Agent or the Transferor or (ii) this Agreement shall for any reason cease to evidence the transfer to the Company of legal and equitable title to, and ownership of, the Transferred Property; or
(i) The Transferor, the Parent or the Collection Agent shall (A) become insolvent, 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; (B) any Insolvency Proceeding or any other Collateral;
proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted by the Transferor, the Parent or the Collection Agent or (fC) An Event any Insolvency Proceeding or any other proceeding seeking the entry of Bankruptcy an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall occur with respect to be instituted against any Transaction Party;the Transferor, the Parent or the Collection Agent, and such other proceeding shall remain unstayed for a period of 60 days, or the requested adjudication, relief or other action sought thereby shall have been made, granted or taken, or (ii) the Transferor, the Parent or the Collection Agent shall take any corporate or entity-level action that authorizes any of the actions set forth above in this Section 7.01(f); or
(g) There shall have occurred and be continuing an “Event of Default” under the Loan Agreement; or
(h) There shall have occurred and be continuing an “Event of Termination” under the Sale Agreement; or
(i) There shall have occurred a Change in Control; or
(j) There shall have occurred any material adverse change in the business or financial condition of the Transferor since December 31, 2011, which could reasonably be expected to affect the value or collectability of the Receivables or the ability of the Company, the Collection Agent or the Transferor to collect the Receivables or otherwise perform its respective obligations under this Agreement or any other Document; or
(k) A Servicer Default Termination Event shall occur;have occurred and be continuing; or
(l) The Transferor or the Company shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act; or
(m) One or more judgments shall be rendered against the Transferor, the Collection Agent, the Company or the Parent or any combination thereof (to the extent not paid or fully covered by insurance) and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Transferor, the Collection Agent, the Company or the Parent to enforce any such judgment and such judgment is for the payment of money in an aggregate amount in excess of $50,000,000; or
(n) An ERISA Event shall have occurred that, in the opinion of the Company, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Parent and its ERISA Affiliates in an aggregate amount exceeding $50,000,000; then, and in any such event, the Company may, by notice to the Transferor (a “Termination Declaration Notice”) declare the Termination Date to have occurred, except that, in the case of any event described in clause (i)(B) or clause (i)(C) of Section 7.01(f) above or any event described in Section 7.01(d) above, the Termination Date shall be deemed to have occurred automatically without notice upon the occurrence of such event.
Appears in 3 contracts
Samples: Receivables Purchase and Contribution Agreement, Receivables Purchase and Contribution Agreement, Receivables Purchase and Contribution Agreement (Community Health Systems Inc)
Events of Termination. If any of the Events of Termination set forth in Exhibit V hereto shall occur and be continuing, the Required Purchaser Agents (or, in the case of Events of Termination described in paragraphs (b), (f) and (i) of Exhibit V, the Administrative Agent or the Required Purchaser Agents) may, by notice to the Seller, take either or both of the following events actions: (eachx) declare the Facility Termination Date and the Commitment Termination Date to have occurred (in which case the Facility Termination Date and the Commitment Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, an “Event designate another Person to succeed the then current Collection Agent as the Collection Agent; provided that, automatically upon the occurrence of Termination”any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of Exhibit V, the Facility Termination Date and the Commitment Termination Date shall occur:
. Upon any such declaration or designation or upon any such automatic termination, the Investors, the Banks, the Administrative Agent and each Purchaser Agent shall have (a) The Borrower shall fail to make any payment (x) of principal in respect the rights of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) Seller as “Buyer” under the Purchase Agreement and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrowerin addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the OriginatorUCC of the appropriate jurisdiction or jurisdictions and under other applicable law, which rights and remedies shall be cumulative. Any Event of Termination may be waived in writing by the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (Required Purchaser Agents other than as (i) the Events of Termination described in clause paragraphs (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrowerb), the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An and (i) of Exhibit V, which shall require the waiver in writing of the Required Purchaser Agents and the Administrative Agent and (ii) the Event of Bankruptcy shall occur with respect to any Transaction Party;
Termination described in paragraph (g) A Servicer Default shall occur;of Exhibit V, which cannot be waived.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (United Rentals North America Inc), Receivables Purchase Agreement and Purchase and Contribution Agreement (United Rentals North America Inc), Receivables Purchase Agreement (United Rentals Inc /De)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds);
(b) or (y) The Borrower shall fail to make any payment of Interest on the Loans or Liquidity Fees when due;
(bc) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) or (b) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(cd) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(de) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request Request, or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (de) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ef) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(fg) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(gh) A Servicer Default or Foreclosure Event shall occur;
Appears in 3 contracts
Samples: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 6.02(g), or (iv) shall fail to deliver any Seller Report when due and such failure shall remain unremedied for more than one Business Day; or
(b) The Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed made by the Seller, the Collection Agent or the Undertaking Party (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document delivered hereunder or any information or report delivered by the Seller, the Collection Agent or the Undertaking Party pursuant to this Agreement or any other Transaction Document delivered hereunder shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller shall (i) fail to perform or observe any other term, covenant or agreement contained in any of Sections 5.01(n)-(r) on its part to be performed or observed or (ii) fail to perform or observe any other term, covenant or agreement in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer Purchaser or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;assignees; or
(e) The Program AgentSeller shall fail to pay any principal of or premium or interest on any of its Debt which is Material Debt when the same becomes due and payable (whether by scheduled maturity, on behalf 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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of IR Parent or Parent; or
(f) Any Purchase of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (but not instituted by IR Parent, Parent, the Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Initial Purchase Agreement, the Secondary Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of the Seller, the Collection Agent or the Undertaking Party to perform its respective obligations under this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of the Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of the Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) The Undertaking shall cease to be in full force and effect, or the Undertaking Party shall fail to (i) make any payment required by the Undertaking and such failure shall remain unremedied for three Business Days, or (ii) perform or observe any other term, covenant or agreement contained in the Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees; or
(l) The Seller shall become an “Additional Borrower” pursuant to the terms of the 2008 Credit Agreement or otherwise incur any Debt pursuant to any Xxxxxxxxx-Xxxx Agreement; then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 3 contracts
Samples: Tertiary Purchase Agreement, Tertiary Purchase Agreement (Ingersoll Rand Co LTD), Tertiary Purchase Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds);
(b) or (y) The Borrower shall fail to make any payment of Interest on the Loans or Liquidity Fees when due, without giving effect to availability of funds, and such failure shall continue for a period of three (3) Business Days;
(bc) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) or (b) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(cd) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(de) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request Request, or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (de) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ef) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(fg) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(gh) A Servicer Default or Foreclosure Event shall occur;
Appears in 3 contracts
Samples: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)
Events of Termination. If any of the following events (each, an “Event of Termination”each a "Termination Event") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transferor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document of the Transaction Documents when due hereunder or thereunder and such failure shall continue remains unremedied for three one Business Day; or
(3b) Business Days;any representation, warranty, certification or statement made by the Transferor 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; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Transferor shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only) or 5.01(d) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any and, solely in the case of this clause (ii), such failure shall remain unremedied for five ten (510) Business Days days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer Transferor has actual knowledge or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge receives written notice thereof;; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;the Transferor; or
(ge) A Servicer the Transferee shall, for any reason, fail or cease to have good and marketable title to the Transferred Assets (other than the Credit Default Swaps and the Account Collateral), fail to vest in or maintain in favor of the Transferee a perfected security interest in the Credit Default Swaps or fail to vest in or fail to maintain in favor of the Administrative Agent a perfected security interest in the Account Collateral, in each case free and clear of any Adverse Claims (other than Permitted Adverse Claims); or
(f) any "Termination Event" shall occur under the Receivables Loan Agreement; then, and in any such event, the Transferee shall, at the direction of the Required Committed Lenders, declare the Termination Date to have occurred, upon notice to the Transferor; provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in paragraph (d) of this Section 7.01, the Termination Date shall occur;. Upon any such declaration or upon such automatic termination, the Transferee 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 3 contracts
Samples: Transfer Agreement (TRW Automotive Inc), Transfer Agreement (TRW Automotive Inc), Transfer Agreement (TRW Automotive Holdings Corp)
Events of Termination. If any of the following events (each, an each a “Event of TerminationTermination Event”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document of the Transaction Documents when due hereunder or thereunder and such failure shall continue remains unremedied for three one Business Day; or
(3b) Business Days;any representation, warranty, certification or statement made by the 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 other than any breach of a representation relating to a Receivable that has been repurchased pursuant to Section 2.03 or with respect to which the Buyer has declined to effect such repurchase as provided therein after receipt of notice of such breach; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe (i) any term, covenant or agreement contained in Sections 5.01(d), (f), (g), (h), and (l) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any and, solely in the case of this clause (ii), such failure shall remain unremedied for five ten (510) Business Days days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer Seller has actual knowledge or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge receives written notice thereof;; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;the Seller; or
(ge) A Servicer Default (i) the Seller receives notice or becomes aware that a notice of lien has been filed against the Seller 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 (ii) (A) a Reportable Event or Reportable Events shall have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (B) the Pension Benefit Guaranty Corporation shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (C) the Seller, any Subsidiary of the Seller or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) the Seller, any Subsidiary of the Seller or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, (E) the Seller, any Subsidiary of the Seller or any ERISA Affiliate shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or
(f) any “Termination Event” shall occur under the Receivables Transfer Agreement; then, and in any such event, the Buyer may, in its discretion, declare the Termination Date to have occurred upon notice to the Seller; provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in paragraph (d) of this Section 7.01, 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 for a secured party in connection with the sale of accounts and under other applicable law, which rights and remedies shall be cumulative.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Nalco Holding CO), Receivables Purchase Agreement (Nalco Holding CO), Receivables Purchase Agreement (Nalco Finance Holdings LLC)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occur:
(ai) The Borrower Servicer (if other than the Agent) shall fail to make perform or observe any payment term, covenant or agreement hereunder (xother than as referred to in clause (ii) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to this Section 2.05(b) or otherwise7.01(a)) and without giving effect such failure shall remain unremedied for five Business Days after written notice thereof shall have been given by the Agent to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor (ii) the Servicer (if other than the Agent), WMECO or the Seller shall fail to make any payment or deposit required to be made by it hereunder when due; or
(other than as described b) Any representation or warranty made or deemed to be made by either the Seller, WMECO or the Servicer (or any of its respective officers) under or in clause (a) above) connection with this Agreement or under any other Facility Transaction Document or any Investor Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when due made or deemed to have been made and such failure shall continue unremedied not have been remedied for three (3) a period of five Business Days;Days after written notice thereof shall have been given by the Agent to the Seller; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor WMECO shall fail to perform or observe any term, covenant or agreement contained in the Transaction Documents on its part to be performed or observed and such failure shall continue unremedied for five Business Days after written notice thereof shall have been given by the Agent to WMECO; or
(d) The Seller or the Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives written notice thereof shall have been given by the Agent to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, Seller or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Servicer; or
(e) The Program AgentSeller or WMECO shall fail to pay any principal of or premium or interest on any Debt (which, on behalf in the case of WMECO, is in an aggregate amount exceeding $10,000,000), when the Secured Partiessame becomes due and payable (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 Debt; or any other default under any agreement or instrument relating to any such Debt 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 Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(f) Any purchase of a Percentage Interest or reinvestment of Collections shall for any reason, except to the extent permitted by the terms hereof, cease to have create a valid and perfected first priority security undivided percentage ownership interest to the extent of such Percentage Interest in each Receivable and the Pledged Contracts Related Security (excluding Security Deposits) and Collections with respect thereto thereto, or any other Collateral;Adverse Claim shall attach to any Receivables, Related Security or Collections and, provided that the attachment of any such Adverse Claim securing payment of taxes, assessments or governmental charges shall not constitute an Event of Termination unless it shall remain outstanding for fifteen days; or
(fi) An The Seller, WMECO or the Servicer (if other than the Agent) 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, WMECO or the Servicer (if other than the Agent) 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, or other similar official for it or for any substantial part of its property; or (ii) the Seller, WMECO or the Servicer (if other than the Agent) shall take any corporate action to authorize any of the actions set forth in clause (i) above in this Section 7.01(g); or
(h) The Loss-to-Liquidation Ratio for any month shall exceed 6.75%, or the average Loss-to-Liquidation Ratio for any six consecutive months shall exceed 5.25%, or the Delinquency Ratio for any month shall exceed 6.25%, or the Gross Charge-Off Ratio for any month shall exceed 2.50%, or the average Dilution Ratio for any three consecutive months shall exceed 1.00%, or the Weighted Average Maturity for any month shall exceed 60.0 days; or
(i) WMECO's senior secured debt shall not be rated at least the Required Rating, or there shall have occurred any event which has a Material Adverse Effect; or
(i) A regulatory, tax or accounting body has ordered that the activities of the Purchaser or any Affiliate of the Purchaser contemplated hereby be terminated or (ii) as a result of any other event or circumstance, the activities of the Purchaser contemplated hereby may reasonably be expected to cause the Purchaser, the financial institution then acting as the administrator or the manager for the Purchaser, or any of their respective Affiliates to suffer materially adverse regulatory, accounting or tax consequences; or
(k) the Purchaser shall be unable to issue Commercial Paper Notes for sixty consecutive days; or
(l) Any Event of Bankruptcy Default under (and as defined in) either of the Liquidity Agreements shall occur with respect to any Transaction Party;or a Liquidity Facility Termination Date shall have occurred; or
(gm) The Coverage Ratio shall be less than 102% for two Business Days; or
(n) A Change of Control shall occur; or
(o) a Servicer Default shall have occurred; or
(p) WMECO or the Seller shall have given notice that it desires to terminate the Purchase and Sale Agreement pursuant to Section 8.1 thereof, or the Purchase and Sale Termination Date shall otherwise occur;; or
(q) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings is pending against the Seller, the Receivables or the Related Security, which has a reasonable likelihood of having an adverse determination that would have a Material Adverse Effect; then, and in any such event, the Agent may, or at the direction of the Required Owners shall, by notice to the Seller declare the Termination Date to have occurred, except that, in the case of any event described in clause (i) of Section 7.01(g), above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, the Agent and the Owners shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Northeast Utilities System), Receivables Purchase Agreement (North Atlantic Energy Corp /Nh)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 6.02(g), or (iv) shall fail to deliver any Seller Report when due and such failure shall remain unremedied for more than one Business Day; or
(b) The Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed made by the Seller or the Collection Agent (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document delivered hereunder or any information or report delivered by the Seller or the Collection Agent pursuant to this Agreement or any other Transaction Document delivered hereunder shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer Purchaser or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;assignees; or
(e) The Program Agent, on behalf Any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of the Seller, IR Parent or Parent; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (but not instituted by IR Parent, Parent, the Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Secondary Purchase Agreement, the Tertiary Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of the Seller or the Collection Agent to perform its respective obligations under this Agreement or any other documents required to be delivered by the Seller or the Collection Agent hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by the Seller or the Collection Agent hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of the Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of the Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) [Intentionally omitted]; then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 2 contracts
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD), Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the following events --------------------- (each, an “Event "Events of Termination”") shall occur:occur and be continuing: ---------------------
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of if the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer Originator or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this subsection (a)) and such failure shall remain unremedied for three Business Days after the receipt of notice or actual knowledge thereof or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) The Originator shall fail (i) to transfer to the Transferee when requested any rights, pursuant to this Agreement, which the Originator then has as Collection Agent, or (ii) to make any payment required under Section 2.04(a); or
(c) Any representation or warranty made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any information or report delivered by the Originator pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Originator by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Transferee; or
(e) The Program Agent, on behalf Any member of the Secured Parties, IKON Group or any Subsidiary thereof shall cease fail to have pay any principal of or premium or interest on any of its Debt which is outstanding in a valid and perfected first priority security interest principal amount of at least 10,000,000 in the Pledged Contracts aggregate when the same becomes due and Collections with respect thereto payable (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 Debt; or any other Collateral;event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) An Event Any member of Bankruptcy the IKON Group or any Subsidiary thereof shall occur with respect 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 Transaction Party;proceeding shall be instituted by or against any such member or Subsidiary 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 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 any such member or Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or
(g) A Servicer Default Trigger Event shall have occurred under the Receivables Transfer Agreement; or
(h) There shall have occurred any material adverse change in the financial condition or operations of the Originator since June 30, 2000; or there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of the Originator to collect Transferred Receivables or otherwise perform its obligations under this Agreement; then, and in any such event, the Transferee may (with the consent of the Administrative Agent), by notice to the Originator, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed the Originator as Collection Agent; provided, that, automatically upon the occurrence of any event (without any -------- requirement for the passage of time or the giving of notice) described in paragraph (f) of this Section 7.01, the Facility Termination Date shall occur;, the Originator (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Transferee (or its assigns or designees) shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Transferee shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 2 contracts
Samples: Transfer Agreement (Ikon Office Solutions Inc), Transfer Agreement (Ios Capital Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer if it is Ferro Corporation or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clauses (ii), (iii), (iv) or (v) of this subsection (a)) and such failure shall remain unremedied for five Business Days, or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement, or (iii) shall fail to deliver any Monthly Report when due and such failure shall remain unremedied for three Business Days, or (iv) shall fail to deliver any Weekly Report when due and such failure shall remain unremedied for more than two Business Days, or (v) shall fail to deliver any Daily Report when due and such failure shall remain unremedied for more than two Business Days, or shall fail to deliver when due more than two Daily Reports in any calendar week; or
(b) Ferro Corporation shall fail to transfer to the Purchaser when requested any rights, pursuant to this Agreement, which Ferro Corporation then has as Collection Agent, or either Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b); or
(c) Any representation or warranty made or deemed made by either Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by such Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) Either Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Purchaser; or
(e) The Program Agent, Either Seller shall fail to pay any principal of or premium or interest on behalf any of the Secured Parties, shall cease to have its Debt which is outstanding in a valid and perfected first priority security interest principal amount of at least $5,000,000 in the Pledged Contracts aggregate when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto or shall for any other Collateral;
(f) An Event reason cease to constitute valid and perfected ownership of Bankruptcy shall occur with respect to such Receivables, Related Security and Collections free and clear of any Transaction Party;Adverse Claim; or
(g) A Servicer Default Either Seller 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 either Seller 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 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 either Seller or any of its subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) an Event of Termination shall have occurred under the Sale Agreement; or
(i) There shall have occurred any material adverse change in the financial condition or operations of Ferro Corporation since December 31, 1999 2004; or there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of either Seller to collect Transferred Receivables or otherwise perform its obligations under this Agreement; the Purchaser hereby acknowledges that in the event the capital stock of Ferro Corporation is no longer listed for trading on the New York Stock Exchange (a “Delisting”), such Delisting shall not, in and of itself and excluding the circumstances leading to such Delisting or resulting therefrom, constitute a material adverse change in the business, operations, property or financial or other condition of Ferro Corporation; or
(j) At least 80% of the outstanding capital stock of Ferro Electronic Materials , Inc. shall cease to be owned, directly or indirectly, by Ferro Corporation; or
(k) The Undertaking Agreement shall cease to be in full force and effect, or Ferro Corporation shall fail to perform or observe any term, covenant or agreement contained in the Undertaking Agreement on its part to be performed or observed and any such failure shall remain unremedied for fifteen days after written notice thereof shall have been given to Ferro Corporation; then, and in any such event, the Purchaser may, by notice to each Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed Ferro Corporation as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur, Ferro Corporation (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Purchaser (or its assigns or designees) shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Ferro Corp), Purchase and Contribution Agreement (Ferro Corp)
Events of Termination. If any of the The following events (each, an shall be “Event Events of Termination”) shall occur” hereunder:
(a) The Borrower shall fail to make any payment (x) of principal in respect Any of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;following events:
(bi) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Any CHR Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement as and when required hereunder or under any other Facility Transaction Document on its part (other than as referred to be performed or observed in clause (a)(ii) below) and any such failure shall remain unremedied for five three (53) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofDays;
(dii) Any any of the following shall occur: (A) any CHR Party shall fail to make any payment or deposit or transfer of monies to be made by it hereunder or under any other Transaction Document as and when due and such failure is not remedied within three (3) Business Days, (B) Seller shall breach Sections 7.3(a), 7.3(e), 7.3(h), 7.3(i), 7.8(a)(iii) or 7.8(b)(x), (C) Master Servicer shall breach Sections 7.6(a), 7.6(e) or 7.6(g); or (D) Master Servicer shall breach Section 3.1(a) and such breach shall remain unremedied for two (2) Business Days;
(b) any representation or warranty made or deemed to be made by the BorrowerSeller, the OriginatorMaster Servicer, the Servicer Performance Guarantor or any Performance Guarantor Originator under or in connection with this Agreement or any other Facility Transaction Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) respect when made or deemed to be made and has caused or deliveredcould reasonably be expected to result in a Material Adverse Effect;
(c) (i) failure of any CHR Party or any Subsidiary thereof (other than Seller) to pay when due any principal of or premium or interest on its Debt in an aggregate amount exceeding $50,000,000, in any such case, when the same becomes due and payable (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 applicable agreement relating to such Debt (whether or not such failure shall have been waived under the related agreement); (ii) the default by any such Person in the performance of any term, provision or condition contained in any agreement under which any such Debt was created or is governed, or any other event shall occur or condition exist (whether or not any such failure shall have been waived under the related agreement), the effect of which is to cause, or to permit the holder or holders of such Debt to cause (whether or not acted upon), such Debt to become due prior to its stated maturity (or permit such holders to terminate any undrawn committed thereunder); or (iii) any such Debt of any CHR Party or any Subsidiary thereof shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment), redeemed, defeased, accelerated or repurchased, or the commitment of any lender thereunder to be terminated, in each case, prior to the stated maturity thereof;
(d) (i) failure of Seller to pay when due any principal of or premium or interest on its Debt in an aggregate amount exceeding $10,000, in any such case, when the same becomes due and payable (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 applicable agreement relating to such Debt (whether or not such failure shall have been waived under the related agreement); or (ii) the default by Seller in the performance of any term, provision or condition contained in any agreement under which any such Debt was created or is governed, or any other event shall occur or condition exist (whether or not any such failure shall have been waived under the related agreement), the effect of which is to cause, or to permit the holder or holders of such Debt to cause (whether or not acted upon), such Debt to become due prior to its stated maturity (or permit such holders to terminate any undrawn committed thereunder);
(e) The Program an Event of Bankruptcy shall have occurred with respect to any CHR Party;
(f) the occurrence of any litigation, or any development has occurred in any litigation to which any CHR Party is a party (including derivative actions), arbitration proceedings or proceedings of any Governmental Authority which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or solely with respect to Seller, is or could reasonably be expected to be for an amount (or economic equivalent thereof) equal to or in excess of $10,000;
(g) the average of the Default Ratios for the three preceding Settlement Periods shall at any time exceed 3.25%;
(h) the average of the Dilution Ratios for the three preceding Settlement Periods shall at any time exceed 1.50%;
(i) the average of the Delinquency Ratios for the three preceding Settlement Periods shall at any time exceed 5.50%;
(j) on any date, after giving effect to the payments made under Section 3.1(c), either (i) the sum of the aggregate Purchasers’ Total Investment and the Required Reserves exceeds the Net Portfolio Balance, or (ii) Purchasers’ Total Investment exceeds the Purchasers’ Total Commitment;
(i) a Change of Control shall occur or (ii) any Originator shall at any time cease to own or control all notes or other evidences of debt of Seller to it in respect of any unpaid purchase price of Pool Receivables (including any Subordinated Note in favor of such Originator);
(l) [Intentionally omitted];
(m) [Intentionally omitted];
(n) any CHR Party shall make any change in any of the Credit and Collection Policies except as permitted by this Agreement;
(A) Administrative Agent, on behalf for the benefit of the Secured Affected Parties, shall cease fails at any time to have a valid and perfected first priority ownership interest or first priority perfected security interest in the Pledged Contracts Pool Receivables and Collections with respect thereto to the extent such security interest can be perfected by filing a financing statement or the execution of an account control agreement, any Related Assets (or any other Collateralportion thereof) and all cash proceeds of any of the foregoing, in each case, free and clear of any Adverse Claim or (B) Administrative Agent shall fail to have a valid first priority perfected security interest in each Lock-Box Account (and all amounts and instruments from time to time on deposit therein), for the benefit of the Administrative Agent;
(fp) An Event either (i) the Internal Revenue Service shall file notice of Bankruptcy a lien pursuant to Section 6323 of the Code with regard to any assets of any CHR Party and such lien shall occur not have been released within five (5) days or (ii) the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of any CHR Party or any of their Affiliates;
(q) (i) the occurrence of a Reportable Event; (ii) the adoption of an amendment to a 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 Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code with respect to any Plan (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of any CHR Party or any of their respective ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any CHR Party or any of their respective ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan or Multiemployer Plan; (vii) the receipt by any CHR Party or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to any CHR Party or any of their respective ERISA Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or condition with respect to a Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(r) any CHR Party shall be required to register as an “investment company” within the meaning of the Investment Company Act;
(s) any CHR Party fails to cooperate in Administrative Agent’s assumption of exclusive control of any Lock-Box Account subject to any Lock-Box Agreement or Administrative Agent is unable to obtain exclusive control thereof in accordance with Section 8.3(b) or such Lock-Box Agreements;
(t) any Transaction Document or any of the terms thereof shall cease to be the valid and binding obligation enforceable against any CHR Party;
(gu) A Seller shall fail to pay in full all of its obligations to Administrative Agent and Purchasers hereunder and under the other Transaction Documents on or prior to the Legal Final;
(v) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than judgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) shall be rendered against any CHR Party or any Subsidiary of any CHR Party or any combination thereof and the same shall remain undischarged for a period of 30 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 CHR Party or any Subsidiary of any CHR Party to enforce any such judgment which is not effectively stayed for a period of 10 consecutive days;
(w) one or more judgments shall be rendered against Seller;
(x) Receivables cease being sold or contributed to the Seller pursuant to the Sale Agreement;
(y) the Performance Guaranty is canceled, rescinded, amended or modified without the prior written consent of Administrative Agent and each Purchaser Agent; or
(z) any Master Servicer Default shall occur;Termination Event.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Events of Termination. If The occurrence of any one or more of the following events (each, shall constitute an “Event of TerminationTermination hereunder, it being expressly acknowledged and agreed that TIME IS OF THE ESSENCE:
6.1 Borrower or any Guarantor fails to comply with Section 2.5 of the Credit Agreement (the “Lockbox Provision”) shall occur:
and, either through action or inaction, takes or permits to be taken any action that would prevent, inhibit, interfere with or delay Borrower’s or such Guarantor’s compliance with the Lockbox Provision, including without limitation any (a1) The Borrower shall fail to make any payment (x) diversion or misdirection of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit funds required to be made by it hereunder deposited to the Lockbox Account pursuant to the Lockbox Provision, (other than as described in clause (a2) above) direction of any such diversion or under any other Facility Document when due and such failure shall continue unremedied for three misdirection, or (3) Business Days;after becoming aware of any diversion or misdirection, failure to take action to prevent or correct such diversion or misdirection.
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail 6.2 Failure of Borrower to perform or observe any term, covenant covenant, warranty or agreement contained in any of the Loan Documents (except as waived or modified in this Agreement), or this Agreement on Borrower’s part to be performed or observed.
6.3 If Borrower or any Guarantor repudiates or asserts a defense to any obligation or liability under the Credit Agreement, this Agreement or any other Facility Loan Document on its part to be performed or observed and makes or pursues a claim against Lender.
6.4 The existence of any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer Default or Events of Default, other than the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableDesignated Defaults, or the Borrowerof any breach or default by Borrower of any term, the Originatorcovenant, the Servicer or any Performance Guarantorcondition, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made set forth in this Agreement, in each case whether now existing or deemed to be made by hereafter occurring.
6.5 Any of the Borrowerrepresentations, warranties, covenants or other agreements of Borrower contained herein (including, but not limited to, the Originator, the Servicer or information contained in any Performance Guarantor under or financial statements of Borrower given to Lender in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant heretoherewith) shall prove to have been materially false or incorrect (except that in any material respect as of the materiality standard date of this Agreement.
6.6 The release of Lender set forth below is alleged to be invalid or unenforceable by any claim or proceeding initiated or commenced in this clause (d) favor of, through, or by Borrower.
6.7 Borrower makes any payments of monies due to or loan or advance any funds to Xxxxxxx X. XxXxxxxx, Palisades Master Fund, LP, Bristol Investment Fund, Ltd. or any holder of Indebtedness subordinated to the Obligations, other than payments to the parties listed on Exhibit B attached hereto as provided in the Cash Flow Forecast.
6.8 Lender shall not apply have received prior to any such representation or warranty that is qualified by a materiality standard by September 30, 2005 an executed agreement between Borrower and the Internal Revenue Service providing for payment of all unpaid taxes in installments on terms acceptable to Lender in its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;Permitted Discretion.
Appears in 2 contracts
Samples: Forbearance and Modification Agreement, Forbearance and Modification Agreement (World Health Alternatives Inc)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make (i) the Seller, any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any other Facility Transaction Document on its part to be performed or observed and (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall remain continue for thirty (30) days after the earlier to occur of (A) written notice thereof having been given to the Seller, any Originator, the Performance Guarantor or the Servicer by the Administrative Agent or any Purchaser or (B) actual knowledge thereof by the Seller, any Originator, the Performance Guarantor or the Servicer of such failure; (ii) the Seller, any Originator, the Performance Guarantor or the Servicer shall fail to make when due (x) any payment or deposit to be made by it under this Agreement or any other Transaction Document (including, for the avoidance of doubt, any remittance required to be made from a Collection Account or Lock-Box to a Blocked Account pursuant to Section 8.01(h) or 8.02(f)) and such failure shall continue unremedied for five two (52) Business Days after any Affected Party gives notice thereof or (iii) CSCDXC shall resign as Servicer, and no successor Servicer reasonably satisfactory to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofAdministrative Agent shall have been appointed;
(db) Any any representation or warranty made or deemed to be made by the BorrowerSeller, the any Originator, the Performance Guarantor or the Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, any Originator, the Performance Guarantor or the Servicer pursuant hereto) to this Agreement or any other Transaction Document (unless such representation or warranty relates solely to one or more specific Pool Receivables and Seller makes a Deemed Collection payment with respect to such Pool Receivable in accordance with Section 4.01(d)), shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;
(e) The Program Agent; provided, on behalf of the Secured Partieshowever, that such circumstance shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An not constitute an Event of Bankruptcy shall occur with respect Termination pursuant to any Transaction Partythis clause (b) if, solely to the extent capable of cure, such breach is cured promptly (but not later than fifteen (15) days);
(g) A Servicer Default shall occur;
Appears in 2 contracts
Samples: Receivables Purchase Agreement, Receivables Purchase Agreement (DXC Technology Co)
Events of Termination. If any of the following events (each, each an “"Event of Termination”") shall occuroccur and be continuing:
(ai) The Borrower Servicer shall fail to make perform or observe any payment (x) of principal in respect of the Loans when due (whether at stated maturityterm, upon acceleration covenant or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder agreement under this Agreement (other than as described referred to in clause (ii) of this subsection (a)) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) Business Days;Days after notice, or (ii) any Transaction Party shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document; or
(cb) Any representation or warranty made or deemed made by any Transaction Party (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any certificate, report or other statement delivered by any Transaction Party pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(i) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(h) or Section 6.03(a), or (ii) the Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five ten (510) Business Days after any Affected Party gives the first date on which the Seller receives written notice thereof to a Responsible Officer of from the Borrower, the Originator, the Servicer Agent; or
(i) NiSource or any Performance GuarantorTransaction Party shall default beyond any applicable period of grace in any payment of principal or interest on any indebtedness for any borrowed money for which NiSource or such Transaction Party is liable in a principal amount then outstanding of $25,000,000 or more or (ii) any other event of default (other than a failure to pay principal or interest) shall occur under any mortgage, as applicableindenture, agreement or instrument under which there may be issued, or the Borrowerby which there may be secured or evidenced, the Originator, the Servicer any indebtedness for any borrowed money for which NiSource or any Performance Guarantor, as applicable, Transaction Party is liable in a principal amount then outstanding of $25,000,000 and either (A) the occurrence of such event shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise obtains knowledge thereof;
become due and payable or (dB) Any representation or warranty made or deemed the occurrence of such event shall permit the holders of such indebtedness to declare such indebtedness to be made by due and payable prior to the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;date on which it would otherwise become due and payable; or
(e) The Program AgentAny purchase or any reinvestment pursuant to this Agreement shall for any reason cease to create, on behalf or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership or security interest to the extent of the Secured Parties, pertinent Receivable Interest in each Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.10 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;collateral referred to in that Section; or
(f) An Event of Bankruptcy shall occur with respect to NiSource or any Transaction Party;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 NiSource or any Transaction Party 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 45 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 NiSource or any Transaction Party shall take any corporate or other action to authorize any of the actions set forth above in this subsection (f); or
(g) A Servicer As of the last day of any calendar month, (i) the Default Ratio shall occurexceed 12.50% or (ii) the Three-Month Default Ratio shall exceed 7.50%; or
(h) As of the last day of any calendar month, (i) the Delinquency Ratio shall exceed 15.00% or (ii) the Three-Month Delinquency Ratio shall exceed 12.50%; or
(i) As of the last day of any calendar month, (i) the Loss-to Liquidation Ratio shall exceed 10.00% or (ii) the Three-Month Loss-to-Liquidation Ratio shall exceed 7.50%; or
(j) As of the last day of any calendar month, the Portfolio Turnover is greater than or equal to 45 days; or
(k) The sum of the Receivable Interests shall exceed 100% except to the extent that Collections set aside and held for the benefit of the Purchaser pursuant to Section 2.04(b)(iii) would cause the sum of the Receivable Interests to be less than or equal to 100% if such funds were applied to the reduction of Capital;
(l) There shall have occurred or shall exist any event or condition which has had or will have a Material Adverse Effect;
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Columbia Energy Group), Receivables Purchase Agreement (Columbia Energy Group)
Events of Termination. If This Agreement, the licenses granted --------------------- hereunder, and/or all Cooperative Application Project Plans shall be subject to termination upon the occurrence of any of the following events and such other provisions hereof expressly so stating (each, an “"Event of Termination”) shall occur:"): --------------------
(a) The Borrower If either Party, or, as relevant, any of its permitted sublicensees, materially defaults on any of its material obligations under this Agreement, the non-defaulting Party shall fail have the right, exercisable in its sole discretion, to make any payment initiate a termination procedure under this Agreement by written notice (xsent in accordance with the provisions of Section 16.6 hereof) of principal in respect describing with reasonable specificity the nature of the Loans when default and requiring that such default be cured, wherein such termination notice shall automatically result in termination unless: (i) within sixty (60) calendar days of receiving such written notice of such default (the "Cure Period"), the defaulting Party (or such sublicensee) ----------- remedies the default; or (ii) in the case of a default that cannot with xxxxxxx due diligence be cured within the Cure Period, the defaulting Party or such sublicensee institutes, by the date upon which one half of the Cure Period shall have expired, steps necessary to remedy the default and thereafter employs best efforts to diligently prosecute the same to completion. Notwithstanding the foregoing, the Cure Period associated with SSG's breach of its payment obligations in accordance with Section 7.1 shall be five (whether at stated maturity5) business days. Notwithstanding any of the foregoing, upon acceleration a Party shall have the right both to immediately terminate this Agreement and to obtain injunctive relief in the event the other Party or at mandatory prepayment any of its Agents or authorized sublicensees engages in any: (a) intentional, material unauthorized use of technology outside of the rights granted hereunder (or, in the case of SSG, any unauthorized disclosure of InterTrust Top Secret Information) and/or (b) willful, material unauthorized disclosure of Confidential Information. Further notwithstanding the foregoing, in the event the Closing fails to occur on or before August 19, 1996 pursuant to Section 2.05(b) or otherwise) 2.1 hereof, SSG shall be in material breach of this Agreement and InterTrust may immediately, upon providing written notice to SSG and without giving effect opportunity to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;cure, terminate this Agreement.
(b) The BorrowerBy a Party at its option, effective immediately upon written notice to the Originatorother Party, in the Servicer event of:
(i) the filing by the other Party of a petition in bankruptcy or insolvency; (ii) the appointment of a receiver for the other Party for all or substantially all of its property relevant to the business activities under this Agreement; (iii) the making by the other Party of any Performance Guarantor shall fail assignment or attempted assignment for the benefit of creditors for all or substantially all of its properties relevant to make its business activities under this Agreement; or (iv) the institution of any payment proceedings for the liquidation or deposit required to be made by it hereunder winding up of the other Party's business or for the termination of its corporate charter, if any such proceeding is not dismissed within one hundred and twenty (other than as described in clause (a120) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Daysdays of institution;
(c) The BorrowerUpon written notice to SSG, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in InterTrust may immediately terminate this Agreement or in its sole discretion in the event SSG fails: (i) to distribute SSG Products and/or Cooperative Applications within sixty (60) months from the date InterTrust first delivers the SDK 1.0 to SSG, subject to any other Facility Document on extension permitted under Section 6.1(a); (ii) to comply with the terms of Section 10.2 hereof; (iii) to terminate any sublicense pursuant to which the sublicensee thereunder materially defaults its part to be performed or observed and any such failure shall remain unremedied obligations under this Agreement for five a period of sixty (560) Business Days days after any Affected Party gives the date of written notice thereof from InterTrust or SSG, whichever is earlier; or (iv) fails to timely make payments due under this Agreement on two or more occasions over a Responsible Officer twelve (12) month period. Upon written notice to InterTrust, SSG may immediately terminate this Agreement in its sole discretion in the event InterTrust fails to comply with the terms of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Section 10.1 hereof.
(d) Any representation or warranty made or deemed A party to be made by a Cooperative Application Project Plan shall have the Borrower, right to terminate such plan if the Originator, the Servicer or other party thereto materially breaches any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by of its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;material obligations thereunder.
Appears in 2 contracts
Samples: Technology Development and License Agreement (Intertrust Technologies Corp), Technology Development and License Agreement (Intertrust Technologies Corp)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 6.02(g), or (iv) shall fail to deliver any Seller Report when due and such failure shall remain unremedied for more than one Business Day; or
(b) The Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed made by the Seller, the Collection Agent or the Undertaking Party (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document delivered hereunder or any information or report delivered by the Seller, the Collection Agent or the Undertaking Party pursuant to this Agreement or any other Transaction Document delivered hereunder shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer Purchaser or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;assignees; or
(e) The Program Agent, on behalf Any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of the Seller, IR Parent or Parent; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (but not instituted by IR Parent, Parent, the Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Initial Purchase Agreement, the Tertiary Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of the Seller, the Collection Agent or the Undertaking Party to perform its respective obligations under this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of the Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of the Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) The Undertaking shall cease to be in full force and effect, or the Undertaking Party shall fail to (i) make any payment required by the Undertaking and such failure shall remain unremedied for three Business Days, or (ii) perform or observe any other term, covenant or agreement contained in the Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees; then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 2 contracts
Samples: Secondary Purchase and Contribution Agreement (Ingersoll Rand Co LTD), Secondary Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the following events (eachany such event, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The BorrowerCollection Agent, the Originator, the Servicer Authorized Representative or any Performance Guarantor Originator shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) five Business Days;; or
(b) Any representation or warranty made or deemed to be made by any Originator, the Collection Agent or CHS (or any of their respective officers or agents) under or in connection with any Document, including any Monthly Report other than with respect to the status of a Receivable as an Eligible Receivable or any other information, report or officer’s certificate delivered pursuant hereto, shall prove to have been false, incorrect or misleading in any material respect when made or deemed made, unless and solely to the extent (i) such representation or warranty does not contain a grace period within such provision, and (ii) such misrepresentation is capable of being cured within 10 days, the Collection Agent, the Authorized Representative and any relevant Originator deliver a written certificate to the Buyer certifying that such false, incorrect or misleading statement, and all ramifications thereof under this Agreement or any Document has been cured in full (together with such data demonstrating such cure) by earlier to occur of (x) the date on which written notice shall have been given to the Authorized Representative and (y) the date on which a Responsible Officer of the Collection Agent, the Authorized Representative or the relevant Originator acquires knowledge thereof; or
(c) The Borrower, the Any Originator, the Servicer Authorized Representative, CHS or any Performance Guarantor the Collection Agent shall fail to perform or observe observe, beyond the applicable grace or cure period therein, any term, covenant or agreement (other than any term, covenant or agreement described in another clause of this Section 7.01) contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure (other than a failure with respect to any of Section 5.01(d), (g), (l), and (q), in each case, as to which no grace period shall apply) shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given by the Buyer to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableAuthorized Representative, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Reportshall cease to be effective or be a legally valid, binding and enforceable obligation of the Buyer, any Monthly Serviced Portfolio ReportOriginator or the Collection Agent, as the case may be or any Borrowing Base Certificateof their respective Affiliates shall contest in any manner the effectiveness, validity, binding nature or enforceability of this Agreement or any Borrowing Request other Document; or
(d) (i) Any Originator, the Parent or the Collection Agent shall fail to pay any principal, interest or other information amount due in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period) or report delivered pursuant hereto(ii) shall prove any other event or condition occurs that results in any Material Indebtedness becoming due prior to have been materially false its scheduled maturity or incorrect that enables or permits (except after giving effect to any grace period) 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 that results in the materiality standard in termination or permits any counterparty to terminate any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, the obligations under which constitute Material Indebtedness; provided that this clause (dii) shall not apply to any secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Debt; or
(e) The Program AgentEither (i) any Purchase shall, on behalf of for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create a valid and perfected first priority security ownership interest in the Pledged Contracts and Collections each Purchased Property with respect thereto free and clear of any Lien (other than Permitted Liens referred to in clause (b) of the definition thereof), which shall remain unremedied for five Business Days after the earlier of delivery of notice thereof by the Buyer or discovery thereof by the Collection Agent or any other Collateral;Originator or (ii) this Agreement shall for any reason cease to evidence the transfer to the Buyer of legal and equitable title to, and ownership of, the Purchased Property; or
(f) An (i) Any Material Originator, the Parent, CHS or the Collection Agent shall (A) become insolvent, 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; (B) any Insolvency Proceeding or any other proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted by any Material Originator, the Parent, CHS or the Collection Agent or (C) any Insolvency Proceeding or any other proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted against any Material Originator, the Parent, CHS or the Collection Agent, and such other proceeding shall remain unstayed for a period of 60 days, or the requested adjudication, relief or other action sought thereby shall have been made, granted or taken, or (ii) any Material Originator, the Parent, CHS or the Collection Agent shall take any corporate or entity-level action that authorizes any of the actions set forth above in this Section 7.01(f); or
(g) There shall have occurred and be continuing an “Event of Bankruptcy Default” under the Loan Agreement; or
(h) There shall occur have occurred and be continuing an “Event of Termination” under the Contribution Agreement; or
(i) There shall have occurred a Change in Control; or
(j) There shall have occurred any material adverse change in the business or financial condition of CHS or the Originators taken as a whole since December 31, 2011, which could reasonably be expected to affect the value or collectability of the Receivables or the ability of the Buyer, the Collection Agent or any Originator to collect the Receivables or otherwise perform its respective obligations under this Agreement or any other Document; or
(k) A Servicer Termination Event shall have occurred and be continuing; or
(l) The Buyer shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act; or
(m) One or more judgments shall be rendered against any Originator, the Collection Agent, the Company, CHS or the Parent or any combination thereof (to the extent not paid or fully covered by insurance) and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Originator, the Collection Agent, the Company, CHS or the Parent to enforce any such judgment and such judgment is for the payment of money in an aggregate amount in excess of $50,000,000; or
(n) An ERISA Event shall have occurred that, in the opinion of the Buyer, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Parent and its ERISA Affiliates in an aggregate amount exceeding $50,000,000; then, and in any such event, the Buyer may, by notice to the Authorized Representative (a “Termination Declaration Notice”) declare the Termination Date to have occurred, except that, (i) in the case of any event described in clause (i)(B) or clause (i)(C) of Section 7.01(f) above or any event described in Section 7.01(d) above, the Termination Date shall be deemed to have occurred automatically without notice upon the occurrence of such event, and (ii) in the case of any event described in Sections 7.01(c) and (h) that relate to an Originator and not Material Originators, no Event of Termination shall be deemed to have occurred so long as the Buyer immediately ceases future purchases of Receivables from such Originator. Notwithstanding the foregoing, the occurrence of one or more events listed above that would otherwise constitute an Event of Termination with respect to any Transaction Party;
Originator or Originators not constituting Material Originators (gas calculated over any period of 30 consecutive days) A Servicer Default shall occur;not constitute an Event of Termination hereunder if such Originator or Originators subject to such event are subject to a Removal (without consideration of the requirement for a 30 day prior written request as set forth in Section 9.14(b)) within 10 days of the occurrence of such event or events.
Appears in 2 contracts
Samples: Receivables Sale Agreement, Receivables Sale Agreement (Community Health Systems Inc)
Events of Termination. If any of the following events (each, an “Event of Termination”each a "Termination Event") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document of the Transaction Documents when due hereunder or thereunder and such failure shall continue remains unremedied for three one Business Day; or
(3b) Business Days;any representation, warranty, certification or statement made by any 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 other than any breach of a representation relating to a Receivable that has been repurchased pursuant to Section 2.03 or with respect to which the Buyer has declined to effect such repurchase as provided therein after receipt of notice of such breach; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only) or 5.01(d) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any and, solely in the case of this clause (ii), such failure shall remain unremedied for five ten (510) Business Days days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer such Seller has actual knowledge or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge receives written notice thereof;; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;Seller; or
(e) the Buyer shall, for any reason, fail or cease to have good and marketable title to the Purchased Receivables and Related Security and Collections with respect thereto, free and clear of any Adverse Claims (other than Permitted Adverse Claims); or
(f) any Change of Control shall occur; or
(g) A Servicer Default there shall occur;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 validity, enforceability or collectibility of the Receivables taken as a whole or (B) the ability of any Seller to perform its obligations under the Transaction Documents; or
(i) any Seller receives notice or becomes aware that a notice of lien has been filed against such Seller 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 (ii) (A) a Reportable Event or Reportable Events shall have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (B) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (C) Holdings, Intermediate Holdings, TRW Automotive, any Subsidiary of TRW Automotive or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) Holdings, Intermediate Holdings, TRW Automotive, any Subsidiary of TRW Automotive or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, (E) Holdings, Intermediate Holdings, TRW Automotive, any Subsidiary of TRW Automotive or any ERISA Affiliate shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or
Appears in 2 contracts
Samples: Receivables Purchase Agreement (TRW Automotive Inc), Receivables Purchase Agreement (TRW Automotive Inc)
Events of Termination. If any of the following events (eachany such event, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The BorrowerCollection Agent, the Originator, the Servicer Authorized Representative or any Performance Guarantor Originator shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) five Business Days;; or
(b) Any representation or warranty made or deemed to be made by any Originator, the Collection Agent or CHS (or any of their respective officers or agents) under or in connection with any Document, including any Monthly Report other than with respect to the status of a Receivable as an Eligible Receivable or any other information, report or officer’s certificate delivered pursuant hereto, shall prove to have been false, incorrect or misleading in any material respect when made or deemed made, unless and solely to the extent (i) such representation or warranty does not contain a grace period within such provision, and (ii) such misrepresentation is capable of being cured within 10 days, the Collection Agent, the Authorized Representative and any relevant Originator deliver a written certificate to the Buyer certifying that such false, incorrect or misleading statement, and all ramifications thereof under this Agreement or any Document has been cured in full (together with such data demonstrating such cure) by earlier to occur of (x) the date on which written notice shall have been given to the Authorized Representative and (y) the date on which a Responsible Officer of the Collection Agent, the Authorized Representative or the relevant Originator acquires knowledge thereof; or
(c) The Borrower, the Any Originator, the Servicer Authorized Representative, CHS or any Performance Guarantor the Collection Agent shall fail to perform or observe observe, beyond the applicable grace or cure period therein, any term, covenant or agreement (other than any term, covenant or agreement described in another clause of this Section 7.01) contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure (other than a failure with respect to any of Section 5.01(d), (g), (l), and (q), in each case, as to which no grace period shall apply) shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given by the Buyer to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableAuthorized Representative, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Reportshall cease to be effective or be a legally valid, binding and enforceable obligation of the Buyer, any Monthly Serviced Portfolio ReportOriginator or the Collection Agent, as the case may be or any Borrowing Base Certificateof their respective Affiliates shall contest in any manner the effectiveness, validity, binding nature or enforceability of this Agreement or any Borrowing Request other Document; or
(d) (i) Any Originator, the Parent or the Collection Agent shall fail to pay any principal, interest or other information amount due in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period) or report delivered pursuant hereto(ii) shall prove any other event or condition occurs that results in any Material Indebtedness becoming due prior to have been materially false its scheduled maturity or incorrect that enables or permits (except after giving effect to any grace period) 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 that results in the materiality standard in termination or permits any counterparty to terminate any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, the obligations under which constitute Material Indebtedness; provided that this clause (dii) shall not apply to any secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Debt; or
(e) The Program AgentEither (i) any Purchase shall, on behalf of for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create a valid and perfected first priority security ownership interest in the Pledged Contracts and Collections each Purchased Property with respect thereto free and clear of any Lien (other than Permitted Liens referred to in clause (b) of the definition thereof and, during the continuance of the time period specified in Section 5.01(u), the Xxx County Lien), which shall remain unremedied for five Business Days after the earlier of delivery of notice thereof by the Buyer or discovery thereof by the Collection Agent or any other Collateral;Originator or (ii) this Agreement shall for any reason cease to evidence the transfer to the Buyer of legal and equitable title to, and ownership of, the Purchased Property; or
(f) An (i) Any Material Originator, the Parent, CHS or the Collection Agent shall (A) become insolvent, 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; (B) any Insolvency Proceeding or any other proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted by any Material Originator, the Parent, CHS or the Collection Agent or (C) any Insolvency Proceeding or any other proceeding seeking the entry of an order for relief or the appointment of a receiver, receiver/manager, custodian, trustee, or other similar official for it or for any substantial part of its property shall be instituted against any Material Originator, the Parent, CHS or the Collection Agent, and such other proceeding shall remain unstayed for a period of 60 days, or the requested adjudication, relief or other action sought thereby shall have been made, granted or taken, or (ii) any Material Originator, the Parent, CHS or the Collection Agent shall take any corporate or entity-level action that authorizes any of the actions set forth above in this Section 7.01(f); or
(g) There shall have occurred and be continuing an “Event of Bankruptcy Default” under the Loan Agreement; or
(h) There shall occur have occurred and be continuing an “Event of Termination” under the Contribution Agreement; or
(i) There shall have occurred a Change in Control; or
(j) There shall have occurred any material adverse change in the business or financial condition of CHS or the Originators taken as a whole since December 31, 2011, which could reasonably be expected to affect the value or collectability of the Receivables or the ability of the Buyer, the Collection Agent or any Originator to collect the Receivables or otherwise perform its respective obligations under this Agreement or any other Document; or
(k) A Servicer Termination Event shall have occurred and be continuing; or
(l) The Buyer shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act; or
(m) One or more judgments shall be rendered against any Originator, the Collection Agent, the Company, CHS or the Parent or any combination thereof (to the extent not paid or fully covered by insurance) and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Originator, the Collection Agent, the Company, CHS or the Parent to enforce any such judgment and such judgment is for the payment of money in an aggregate amount in excess of $50,000,000; or
(n) An ERISA Event shall have occurred that, in the opinion of the Buyer, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Parent and its ERISA Affiliates in an aggregate amount exceeding $50,000,000; then, and in any such event, the Buyer may, by notice to the Authorized Representative (a “Termination Declaration Notice”) declare the Termination Date to have occurred, except that, (i) in the case of any event described in clause (i)(B) or clause (i)(C) of Section 7.01(f) above or any event described in Section 7.01(d) above, the Termination Date shall be deemed to have occurred automatically without notice upon the occurrence of such event, and (ii) in the case of any event described in Sections 7.01(c) and (h) that relate to an Originator and not Material Originators, no Event of Termination shall be deemed to have occurred so long as the Buyer immediately ceases future purchases of Receivables from such Originator. Notwithstanding the foregoing, the occurrence of one or more events listed above that would otherwise constitute an Event of Termination with respect to any Transaction Party;
Originator or Originators not constituting Material Originators (gas calculated over any period of 30 consecutive days) A Servicer Default shall occur;not constitute an Event of Termination hereunder if such Originator or Originators subject to such event are subject to a Removal (without consideration of the requirement for a 30 day prior written request as set forth in Section 9.14(b)) within 10 days of the occurrence of such event or events.
Appears in 2 contracts
Samples: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make (i) any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Centric Party shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any other Facility Transaction Document on its part to be performed or observed and (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall remain continue for ten (10) Business Days, (ii) any Centric Party shall fail to make when due (x) any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall continue unremedied for five two (52) Business Days after any Affected Party gives notice thereof or (iii) Centric shall resign as Servicer, and no successor Servicer reasonably satisfactory to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofAdministrative Agent shall have been appointed;
(db) Any any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer any Centric Party (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by any Centric Party pursuant hereto) to this Agreement or any other Transaction Document, shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;
(ec) The Program Agentthe Seller or the Servicer shall fail to deliver an Information Package or Interim Report at the time required pursuant to this Agreement, on behalf of the Secured Parties, and such failure shall remain unremedied for two (2) Business Days;
(d) this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to have create, or for any reason cease to be, a valid and perfected enforceable first priority perfected security interest in favor of the Pledged Contracts and Collections Administrative Agent with respect thereto or to the Support Assets, free and clear of any other CollateralAdverse Claim;
(fe) An Event any Centric 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 Centric benefit of Bankruptcy creditors; or any Insolvency Proceeding shall occur with respect to be instituted by or against any Transaction Party;
Centric Party and, in the case of any such proceeding instituted against such Person (gbut not instituted by such Person), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) A Servicer Default consecutive 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 any Centric Party shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Centric Brands Inc.), Receivables Purchase Agreement (Centric Brands Inc.)
Events of Termination. If The Forbearance Period shall automatically terminate immediately upon the occurrence of any of the following events (each, an “Event of Termination”) shall occur:):
(a) The Borrower the failure of any Loan Party to comply with any term, condition or covenant expressly set forth in this Agreement, including, without limitation, the covenants in Section IV of this Agreement, unless (a) the Requisite Lenders, in their sole discretion, grant a cure period for compliance with such term, condition or covenant (including via e-mail) (in which case the Forbearance Period shall fail to make any payment (x) of principal in respect terminate if the applicable Loan Party does not comply by the expiration of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of fundscure period) or (yb) of Interest on the Loans or Liquidity Fees when dueLoan Party’s failure to comply is otherwise waived by the Requisite Lenders (including via e-mail);
(b) The Borrowerthe occurrence of an “Event of Default” under the Credit Agreement, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Daysthe Forbearance Defaults;
(c) The Borrower, the Originator, the Servicer Borrower or any Performance Guarantor shall fail of its Subsidiaries or other affiliates pay any interest relating to perform or observe any termthe 5.950% Notes due 2024 issued pursuant to the Indenture (the “Notes”), covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed regardless whether then due and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofowing;
(d) Any representation the occurrence of any “Event of Default” under any of the Other Debt Documents (in each case as such terms (or warranty made or deemed any comparable terms) are defined in such Other Debt Documents, as applicable), in each case that is not subject to be made a forbearance under the Other Forbearance Agreements;
(e) a breach by the Borrower, the OriginatorWPG (as defined below), the Servicer or any Performance Guarantor under of their Subsidiaries or Affiliates of any covenant or other provision of any forbearance agreement entered into in connection with any of the Forbearance Defaults (or related cross-defaults) under the Other Debt Documents (the “Other Forbearance Agreements”) or the termination of the forbearance period under any of the Other Forbearance Agreements;
(f) any representation or warranty contained in this Agreement or shall be incorrect in any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except material respect as of the date hereof; provided that the materiality standard in this clause (d) shall not apply to if any such representation or warranty that is qualified by or subject to a materiality standard by its terms) when made qualification, such representation or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, warranty shall cease to have a valid be true and perfected first priority security interest correct in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Partyall respects;
(g) A Servicer Default shall occur;the enforcement of any rights or remedies under: (i) any of the Other Debt Documents and/or (ii) any of the Other Forbearance Agreements; and/or
(h) entry into any restructuring support agreement, debtor-in-possession financing, plan of reorganization or similar agreement by the Borrower, WPG or any of their Subsidiaries or Affiliates, in each case without the consent of the Requisite Lenders, acting in their sole discretion.
Appears in 2 contracts
Samples: Forbearance Agreement (Washington Prime Group, L.P.), Forbearance Agreement (Washington Prime Group, L.P.)
Events of Termination. If any of the following events (each, an “"Event of Termination”") shall occur:
(a) The Borrower Seller shall fail to make any payment (x) of principal or deposit in respect of the Loans when due (whether at stated maturityCapital, upon acceleration Yield, Liquidity Fees, Program Fees or at mandatory prepayment (pursuant Servicer Fees required to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees be made by it hereunder when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit (other than those amounts referred to in clause (a) above) required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three one (31) Business DaysDay;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five ten (510) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofDays;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor Seller under or in connection with this Agreement or Agreement, any other Facility Document (including any Monthly Investor Report, any Monthly Serviced Portfolio Weekly Report, any Borrowing Base Certificate, any Borrowing Purchase Request or other information or report delivered pursuant hereto) hereto shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or deliveredmade;
(e) The Program Agent, on behalf of the Secured Parties, Purchasers shall cease to have a valid and perfected first priority security ownership interest to the extent of the pertinent Purchased Interest in each Transferred Receivable and the Pledged Contracts Related Security and Collections with respect thereto or any other Collateralthereto;
(i) The Seller, the Servicer or ATTWS 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, the Servicer or ATTWS seeking to adjudicate it as 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 any substantial part of its property which proceeding has not been dismissed or stayed within thirty (30) days; or (ii) the Seller, the Servicer or ATTWS shall take any corporate action to authorize any of the actions set forth in clause (i) above in this paragraph (f) An Event of Bankruptcy shall occur with respect to any Transaction Party);
(g) A Servicer Default shall occur;
Appears in 2 contracts
Samples: Receivables Purchase Agreement (At&t Wireless Services Inc), Receivables Purchase Agreement (At&t Wireless Services Inc)
Events of Termination. If any Each of the following events (each, shall be an “Event of Termination”) shall occur” hereunder:
(a) The Borrower shall fail Servicer or Seller fails to make an payment hereunder or fails to deposit or remit any payment (x) of principal in respect Collections as and when required hereunder or Servicer or Seller fails to perform any of the Loans when due (whether at stated maturityterms, upon acceleration covenants, conditions or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement provisions contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrowerother Transaction Documents to which it is a party;
(b) any representation, warranty or statement of fact made by Seller or Servicer to Purchaser in this Agreement, the Originator, the Servicer other Transaction Documents or any Performance Guarantorother agreement, as applicableschedule, confirmatory assignment or otherwise shall when made or deemed made be false or misleading in any material respect;
(c) any Guarantor terminates or fails in any material respect to perform any of the Borrowerterms, covenants, conditions or provisions of the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofguarantee of Guarantors in favor of Purchaser;
(d) Any representation Seller or warranty made Servicer dissolves or deemed to be made by the Borrower, the Originator, the Servicer suspends or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivereddiscontinues doing business;
(e) The Program AgentSeller or Servicer makes an assignment for the benefit of creditors, on behalf makes or sends notice of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto bulk transfer or any other Collateralcalls a meeting of its creditors or Seller or Servicer becomes insolvent (however defined or evidenced);
(f) An Event a case or proceeding under the bankruptcy laws of Bankruptcy the United States of America now or hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether at law or in equity) is filed against Seller, Servicer, or any Guarantor or all or any part of its properties and such petition or application is not dismissed within thirty (30) days after the date of its filing, or Seller, Servicer, or any Guarantor shall occur with respect to file any Transaction Partyanswer admitting or not contesting such petition or application or indicates its or his consent to, acquiescence in or approval of, any such action or proceeding or the relief requested is granted sooner;
(g) A Servicer Default a case or proceeding under the bankruptcy laws of the United States of America now or hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether at a law or equity) is filed by Seller, Servicer, or any Guarantor for all or any part of its property;
(h) any Event of Default, or event which with notice or the passage of time or both, would become an Event of Default, under and as defined in the Indenture or the Working Capital Financing Agreements, or any agreement securing or guaranteeing payment of the Senior Secured Notes or the amounts due under the Working Capital Financing Agreements,
(i) any default by Seller, Servicer, or any Guarantor under any agreement, document or instrument relating to any other indebtedness for borrowed money owing to any person other than the Working Capital Lenders, or any capitalized lease obligations, contingent indebtedness in connection with any guarantee, letter of credit, indemnity or similar type of instrument in favor of any person other than the Working Capital Lenders, in any case in an amount in excess of $2,500,000, which default continues for more than the applicable cure period, if any, with respect thereto, or any default by Seller, Servicer, or any Guarantor under any material contract, lease, license or other obligation to any Person other than the Working Capital Lenders, which default continues for more than the applicable cure period, if any, with respect thereto; or
(j) the Working Capital Financing Agreements shall occur;expire or terminate.
Appears in 2 contracts
Samples: Accounts Purchase and Sale Agreement (Listerhill Total Maintenance Center LLC), Accounts Purchase and Sale Agreement (Wise Metals Group LLC)
Events of Termination. If any of the following events --------------------- (each, each an “"Event of Termination”") shall occur:
(a) The Borrower the Parent, the Distributor (as Distributor, Principal Shareholder Servicer or as Program Servicer Agent), the Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent or any Company or Fund shall fail to make any payment (x) of principal or cause to be made in respect of the Loans manner and when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made or to be caused to be made by it hereunder (under this Agreement or any of the other than as described in clause (a) above) or under any other Facility Document when due Program Documents and such failure shall continue unremedied for three (3) Business Days;; or
(cb) The Borrowerthe Parent, the OriginatorDistributor (as Distributor, Principal Shareholder Servicer or as Program Servicer Agent), the Servicer Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent or any Performance Guarantor Selling Agent, or any Company shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed under any Program Document (other than those described in clause (a) of this Section 6.01) and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;could have an Adverse Effect; or
(dc) Any (i) any representation or warranty made or deemed to be made by the BorrowerParent, the OriginatorDistributor (as Distributor, Principal Shareholder Servicer or as Program Servicer Agent), the Transferor, the Seller, the Shareholder Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Program Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request except where such incorrect or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such misleading representation or warranty that is qualified by a materiality standard by its termscould not reasonably be expected to give rise to an Adverse Effect) shall have been incorrect when made or deemed made made, or (ii) any Investor Report or any other statement, certificate or report delivered by or on behalf of the Parent, the Distributor, the Seller or the Shareholder Servicer in connection with this Agreement, or any other Program Document (except where such incorrect or misleading document or statement could not reasonably be expected to give rise to an Adverse Effect), shall have been false, incorrect or misleading when delivered;; or
(d) the applicable Purchaser shall fail to acquire in a True Sale, or shall cease to have, a 100% undivided ownership interest in any Purchased Portfolio Asset, free and clear of any Adverse Claim; or
(e) The Program Agent(i) the Seller, on behalf the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company or any Fund or any Significant Affiliate thereof 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 in the case of the Secured PartiesDistributor the Distributor shall otherwise become "insolvent" within the meaning of SIPA; or (ii) any proceeding shall be instituted by or against the Seller, shall cease the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company, any Fund or any Significant Affiliate thereof seeking to have adjudicate it a valid and perfected first priority security interest bankrupt or insolvent, or seeking liquidation, winding up reorganization, arrangement, adjustment, protection, relief, or composition of it or its Debts under any Applicable 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 Pledged Contracts and Collections with respect thereto 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 sixty (60) days; or (iii) any of the actions sought in any proceeding described in (ii) above (including 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 (iv) the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent which is a Federated Entity, any Company, any Fund or any other Collateral;Significant Affiliate thereof shall take any action to authorize any of the actions set forth above in this Section 6.01(e); or
(f) An Event there shall have occurred any material adverse change in (i) the financial condition or results of Bankruptcy operations of the Parent and its consolidated subsidiaries taken as a whole since December 31, 1996; or (ii) the Seller, the Transferor the Shareholder Servicer, the Parent, the Distributor, any Advisor or any Transfer Agent which is a Federated Entity shall occur with fail to make payments when due in respect to any Transaction Partyof Debt aggregating in excess of $5,000,000, provided that the determination of default on such Debt is not being diligently contested in good faith through appropriate proceedings;
(g) A Servicer Default any Distribution Plan, Distributor's Contract, Principal Shareholder Servicer's Agreement, Shareholder Servicer's Agreement, Prospectus, the Conduct Rules, or the Contingent Deferred Sales Charge arrangements applicable to holders of Shares of any Fund or the terms of any Conversion Feature in respect of any Share of any Fund, each as in effect on the date of this Agreement, shall occurbe amended, waived, supplemented or modified, in any manner or by any means (including a change in Applicable Law), which could reasonably be expected to have an Adverse Effect, unless waived by the Program Administrator;
(h) the Securities Investor Protection Corporation, established under SIPA, shall have applied for a protective decree against the Distributor; or
(i) the Distributor shall have failed to meet the minimum capital requirements prescribed from time to time by Rule 15c3-1 under the Exchange Act and such failure continues uncured for 10 days after the Distributor obtains knowledge thereof; or
(j) the SEC shall have modified or terminated Rule 12b-1 of the Investment Company Act or the NASD shall have modified or terminated the Conduct Rules in a manner which could reasonably be expected to give rise to an Adverse Effect; or
(k) the Distributor shall cease to be registered as a broker/dealer under the Exchange Act and with the NASD or the NASD suspends the Distributor's membership or registration; or
(l) any Company or any Transfer Agent shall, without the written consent of the Program Administrator, fail to withhold from redemption proceeds paid to any holder of a Share any Contingent Deferred Sales Charges required to be withheld and remit such funds to the Program Collection Account in accordance with any Irrevocable Payment Instruction, or shall be prevented by any Authority or by any Applicable Law from doing so or any Company or any Transfer Agent shall so assert in writing; or
(m) any Company shall be required by any Authority or any Applicable Law to cease or suspend the sale of Shares of any Fund under circumstances that could reasonably be expected to result in an Adverse Effect; or
(n) any Company in respect of itself or any Fund shall propose or effect a merger or other combination with another Person not constituting a Fund if, in the reasonable judgment of the Program Administrator, the amount of the potential unrealized Program Collections from such Fund is material; or
(o) as of any Calculation Date the NAV Decline Ratio (adjusted for stock splits, capital gains and annual and quarterly income distributions) from the end of the immediately preceding calendar month shall be twenty- five percent (25%) or more; or
(p) the applicable Advisor shall cease to act as the investment advisor of any Fund under the applicable Advisory Agreement; or
(q) aggregate Free Redemptions result in the occurrence of the Redemption Threshold Date; then in respect of any occurrence of any such event, the Program Administrator may in respect of each such occurrence, by notice to the Seller declare the Revolving Purchase Termination Date to have occurred (in which case the Revolving Purchase Termination Date shall be deemed to have occurred); provided, -------- that, upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) or (h) of this Section 6.01, the Revolving Purchase Termination Date shall be deemed to have automatically occurred.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer if United Rentals or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this paragraph (a)) and such failure shall remain unremedied for three Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) An Originator shall fail to make any payment required under Section 2.05(a) or 2.05(b); or
(c) Any representation or warranty made or deemed made by any Originator or the Parent (or any of their respective officers) pursuant to this Agreement or the Performance Undertaking Agreement or any other Transaction Document or any information or report delivered by the Originator pursuant to this Agreement or any other Transaction Document or the Parent pursuant to the Performance Undertaking Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Parent or the Originators shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days ten days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, Parent or the appropriate Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made applicable by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Buyer; or
(e) United Rentals or any of its Subsidiaries shall fail to pay its Debt and other obligations, including liabilities in respect of Taxes, before the same shall become delinquent or in default, except where (a)(i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) United Rentals or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (iii) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation and (iv) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect or (b) the aggregate uninsured and unpaid amount is less than $25,000,000 and does not include Taxes or the failure to make payment could not reasonably be expected to result in a Material Adverse Effect; or
(f) Any purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to constitute valid ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim other than the security interest created pursuant to Section 5.02 hereof and any Permitted Liens; or
(g) Any Originator or the Parent 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 file a notice of intention to make a proposal to some or all of its creditors; or any proceeding shall be instituted by or against the Seller or the Parent 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, 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 any Originator or the Parent shall take any corporate action to authorize any of the actions set forth above in this paragraph (g);
(h) There shall have occurred any material adverse change in the business, operations, property or financial condition of an Originator or the Parent since the end of its most recent fiscal quarter; or there shall have occurred any event which could reasonably be expected to materially adversely affect (as determined by the Banks in their sole and absolute discretion) the collectibility of the Transferred Receivables or the ability of an Originator to collect Transferred Receivables or otherwise perform its obligations under this Agreement; or
(i) The Program AgentPerformance Undertaking Agreement shall cease to be in full force and effect or the Parent shall fail to perform or observe any term, covenant or agreement contained in the Performance Undertaking Agreement on its part to be performed or observed and any such failure shall remain unremedied for ten days after written notice thereof shall have been given by the Buyer (or the Administrative Agent or any Purchaser Agent on behalf of the Secured PartiesBuyer) to the Parent; then, shall cease and in any such event, the Buyer may, by notice to the Originators, declare the Facility Termination Date to have a valid occurred (in which case the Facility Termination Date shall be deemed to have occurred) provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Buyer shall have, in addition to the rights and perfected first priority security interest in the Pledged Contracts remedies under this Agreement, all other rights and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals North America Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a1) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer if it is Ferro Corporation or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained under this Agreement (other than as referred to in clauses (ii), (iii), (iv) or (v) of this subsection (a)) and such failure shall remain unremedied for five Business Days, or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement, or (iii) shall fail to deliver any Monthly Report when due pursuant to Section 6.02(g) and such failure shall remain unremedied for three Business Days, or (iv) shall fail to deliver any Weekly Report when due pursuant to Section 6.02(h) and such failure shall remain unremedied for more than two Business Days, or (v) shall fail to deliver any Daily Report when due pursuant to Section 6.02(h) and such failure shall remain unremedied for more than two Business Days, or shall fail to deliver when due more than two Daily Reports in any calendar week; or
(2) Ferro Corporation shall fail to transfer to the Agent when requested any rights, pursuant to this Agreement, which Ferro Corporation then has as Collection Agent, or the Seller or an Originator shall fail to make any payment required under Section 2.04; or
(3) Any representation or warranty made or deemed made by the Seller or the Collection Agent (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document or any information or report delivered by the Seller or the Collection Agent pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(4) The Seller or an Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five 10 days after written notice thereof shall have been given to the Seller by the Agent; or
(5) Business Days The Seller or an Originator shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $5,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after any Affected Party gives notice thereof the applicable grace period, if any, specified in the agreement or instrument relating to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement such Debt; or any other Facility Document (including event shall occur or condition shall exist under any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request agreement or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply instrument relating to any such representation Debt and shall continue after the applicable grace period, if any, specified in such agreement or warranty that instrument, if the effect of such event or condition is qualified to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a materiality standard by its terms) when made regularly scheduled required prepayment), redeemed, purchased or deemed made defeased, or delivered;an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e6) The Program AgentAny purchase or any reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, on behalf or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the Secured Parties, pertinent Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.10 or 2.14(b) shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto collateral security referred to in such sections; or
(7) The Seller or an Originator 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 or an Originator 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 Collateral;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 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 the Seller or an Originator shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(f8) As of the last day of any calendar month, either (i) the average of the Default Ratios for such month and the two immediately preceding months shall exceed 6.0% or (ii) the average of the Dilution Ratios for such month and the two immediately preceding months shall exceed 9.0% or (iii) the Loss-to-Liquidation Ratio shall exceed 0.5%; or
(A) At any time when a Non-Investment Grade Event does not exist, the sum of the Receivable Interests shall on any Business Day be greater than 97% and shall remain greater than 97% for more than three Business Days; or (B) at any time when a Non-Investment Grade Event does exist (so long as a BB Downgrade Event, including, without limitation, the 0000 Xxxxxxxxx Event and the 2006 Downgrade Events) shall not have occurred and be continuing), the sum of the Receivable Interests shall on any Business Day be greater than 97% and shall remain greater than 97% for more than one Business Day; or (C) after the occurrence and during the continuation of a BB Downgrade Event, including, without limitation, the 2005 Downgrade Event, or either of the 2006 Downgrade Events, the sum of the Receivable Interests shall (x) on any Business Day occurring during the period beginning on December 20 of any year and ending on December 31 of such year or the period beginning on June 24 of any year and ending on July 7 of such year, be greater than 92% and remain greater that 92% for more than one Business Day, or (y) on any Business Day at any other time, be greater than 95% and shall remain greater than 95% for more than one Business Day; or
(10) There shall have occurred any material adverse change in the financial condition or operations of the Seller since September 28, 2000, or an Originator since December 31, 2004; or there shall have occurred any event which may materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement; the Agent, the Investors and the Banks hereby acknowledge that in the event the capital stock of Ferro Corporation is no longer listed for trading on the New York Stock Exchange (a “Delisting”), such Delisting shall not, in and of itself and excluding the circumstances leading to such Delisting or resulting therefrom, constitute a material adverse change in the business, operations, property or financial or other condition of Ferro Corporation; or
(11) An “Event of Bankruptcy Termination” or “Facility Termination Date” shall occur with respect under the Originator Purchase Agreement, or the Originator Purchase Agreement shall cease to be in full force and effect; or
(12) [Intentionally Omitted]
(13) At least 80% of the outstanding capital stock of the Seller and Ferro Electronic Materials Inc. shall cease to be owned, directly or indirectly, by Ferro Corporation; or
(14) The Undertaking Agreement shall cease to be in full force and effect, or Ferro Corporation shall fail to perform or observe any Transaction Party;term, covenant or agreement contained in the Undertaking Agreement on its part to be performed or observed and any such failure shall remain unremedied for fifteen days after written notice thereof shall have been given by the Agent to the Seller; or
(15) The occurrence of an event of default under the Credit Agreement arising as a result of the breach of any financial covenant contained therein; or
(16) One or more judgments for the payment of money in an aggregate amount in excess of $7,500,000 (except to the extent covered by insurance as to which the insurer has acknowledged such coverage in writing) shall be rendered against (i) either Originator or any of their respective Subsidiaries or any combination thereof or (ii) the Collection Agent or any of its Subsidiaries or a combination thereof, and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be taken by a judgment creditor to attach or levy upon any assets of either of the Originators or the Collection Agent or any of their respective Subsidiaries to enforce any such judgment; then, and in any such event, any or all of the following actions may be taken by notice to the Seller: (x) the Investor or the Agent may declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), (y) the Agent may declare the Commitment Termination Date to have occurred (in which case the Commitment Termination Date shall be deemed to have occurred), and (z) without limiting any right under this Agreement to replace the Collection Agent, the Agent may designate another Person to succeed Ferro Corporation as the Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) A Servicer Default of this Section 7.01, the Facility Termination Date shall occur;, Ferro Corporation (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Agent or its designee shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Investors, the Banks and the Agent shall have, in addition to the rights and remedies which they 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 1 contract
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal or interest in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when dueprepayment);
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request Request, any Servicing Transmission or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction PartyParty or Xxxxxx X. Xxxxxx XX;
(g) A Servicer Default shall occur;
Appears in 1 contract
Samples: Loan and Servicing Agreement (DriveTime Automotive, Inc.)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer if United Rentals or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this paragraph (a)) and such failure shall remain unremedied for three Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) An Originator shall fail to make any payment required under Section 2.05(a) or 2.05(b); or
(c) Any representation or warranty made or deemed made by any Originator or the Parent (or any of their respective officers) pursuant to this Agreement or the Performance Undertaking Agreement or any other Transaction Document or any information or report delivered by the Originator pursuant to this Agreement or any other Transaction Document or the Parent pursuant to the Performance Undertaking Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Parent or the Originators shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days ten days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, Parent or the appropriate Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made applicable by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Buyer; or
(e) United Rentals or any of its Subsidiaries shall fail to pay its Debt and other obligations, including liabilities in respect of Taxes, before the same shall become delinquent or in default, except where (a)(i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) United Rentals or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (iii) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation and (iv) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect or (b) the aggregate uninsured and unpaid amount is less than $25,000,000 and does not include Taxes or the failure to make payment could not reasonably be expected to result in a Material Adverse Effect; or
(f) Any purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to constitute valid ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim other than the security interest created pursuant to Section 5.02 hereof and any Permitted Liens; or
(g) Any Originator or the Parent 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 file a notice of intention to make a proposal to some or all of its creditors; or any proceeding shall be instituted by or against the Seller or the Parent 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 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 the Seller or the Parent shall take any corporate action to authorize any of the actions set forth above in this paragraph (g);
(h) There shall have occurred any material adverse change in the business, operations, property or financial condition of an Originator or the Parent since the end of its most recent fiscal quarter; or there shall have occurred any event which could reasonably be expected to materially adversely affect (as determined by the Banks in their sole and absolute discretion) the collectibility of the Transferred Receivables or the ability of an Originator to collect Transferred Receivables or otherwise perform its obligations under this Agreement; or
(i) The Program AgentPerformance Undertaking Agreement shall cease to be in full force and effect or the Parent shall fail to perform or observe any term, covenant or agreement contained in the Performance Undertaking Agreement on its part to be performed or observed and any such failure shall remain unremedied for ten days after written notice thereof shall have been given by the Buyer (or the Administrative Agent or any Purchaser Agent on behalf of the Secured PartiesBuyer) to the Parent; then, shall cease and in any such event, the Buyer may, by notice to the Originators, declare the Facility Termination Date to have a valid occurred (in which case the Facility Termination Date shall be deemed to have occurred) provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Buyer shall have, in addition to the rights and perfected first priority security interest in the Pledged Contracts remedies under this Agreement, all other rights and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Purchase Agreement (United Rentals North America Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 6.02(g), or (iv) shall fail to deliver any Seller Report when due and such failure shall remain unremedied for more than one Business Day; or
(b) The Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed made by the Seller, the Collection Agent or the Undertaking Party (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document delivered hereunder or any information or report delivered by the Seller, the Collection Agent or the Undertaking Party pursuant to this Agreement or any other Transaction Document delivered hereunder shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller shall (i) fail to perform or observe any other term, covenant or agreement contained in any of Sections 5.01(n)-(r) on its part to be performed or observed or (ii) fail to perform or observe any other term, covenant or agreement in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer Purchaser or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;assignees; or
(e) The Program AgentSeller shall fail to pay any principal of or premium or interest on any of its Debt which is Material Debt when the same becomes due and payable (whether by scheduled maturity, on behalf 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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of IR Parent or Parent; or
(f) Any Purchase of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (but not instituted by IR Parent, Parent, the Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Initial Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of the Seller, the Collection Agent or the Undertaking Party to perform its respective obligations under this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of the Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of the Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) The Undertaking shall cease to be in full force and effect, or the Undertaking Party shall fail to (i) make any payment required by the Undertaking and such failure shall remain unremedied for three Business Days, or (ii) perform or observe any other term, covenant or agreement contained in the Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees; or
(l) The Seller shall become an “Additional Borrower” pursuant to the terms of the 2008 Credit Agreement or otherwise incur any Debt pursuant to any Xxxxxxxxx-Xxxx Agreement; then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Secondary Purchase Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the The following events (each, an shall be “Event Events of Termination”) shall occur” hereunder:
(a) The Borrower shall fail to make any payment (x) of principal in respect Any of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;following events:
(bi) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Any CHR Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement as and when required hereunder or under any other Facility Transaction Document on its part (other than as referred to be performed or observed in clause (a)(ii) below) and any such failure shall remain unremedied for five three (53) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofDays;
(dii) Any any of the following shall occur: (A) any CHR Party shall fail to make any payment or deposit or transfer of monies to be made by it hereunder or under any other Transaction Document as and when due and such failure is not remedied within three (3) Business Days, (B) Seller shall breach Sections 7.3(a), 7.3(e), 7.3(h), 7.3(i), 7.8(a)(iii) or 7.8(b)(x), (C) Master Servicer shall breach Sections 7.6(a), 7.6(e) or 7.6(g); or (D) Master Servicer shall breach Section 3.1(a) and such breach shall remain unremedied for two (2) Business Days;
(b) any representation or warranty made or deemed to be made by the BorrowerSeller, the OriginatorMaster Servicer, the Servicer Performance Guarantor or any Performance Guarantor Originator under or in connection with this Agreement or any other Facility Transaction Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) respect when made or deemed to be made and has caused or deliveredcould reasonably be expected to result in a Material Adverse Effect;
(c) (i) failure of any CHR Party or any Subsidiary thereof (other than Seller) to pay when due any principal of or premium or interest on its Debt in an aggregate amount exceeding $50,000,000, in any such case, when the same becomes due and payable (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 applicable agreement relating to such Debt (whether or not such failure shall have been waived under the related agreement); (ii) the default by any such Person in the performance of any term, provision or condition contained in any agreement under which any such Debt was created or is governed, or any other event shall occur or condition exist (whether or not any such failure shall have been waived under the related agreement), the effect of which is to cause, or to permit the holder or holders of such Debt to cause (whether or not acted upon), such Debt to become due prior to its stated maturity (or permit such holders to terminate any undrawn committed thereunder); or (iii) any such Debt of any CHR Party or any Subsidiary thereof shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment), redeemed, defeased, accelerated or repurchased, or the commitment of any lender thereunder to be terminated, in each case, prior to the stated maturity thereof;
(d) (i) failure of Seller to pay when due any principal of or premium or interest on its Debt in an aggregate amount exceeding $10,000, in any such case, when the same becomes due and payable (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 applicable agreement relating to such Debt (whether or not such failure shall have been waived under the related agreement); or (ii) the default by Seller in the performance of any term, provision or condition contained in any agreement under which any such Debt was created or is governed, or any other event shall occur or condition exist (whether or not any such failure shall have been waived under the related agreement), the effect of which is to cause, or to permit the holder or holders of such Debt to cause (whether or not acted upon), such Debt to become due prior to its stated maturity (or permit such holders to terminate any undrawn committed thereunder);
(e) The Program an Event of Bankruptcy shall have occurred with respect to any CHR Party;
(f) the occurrence of any litigation, or any development has occurred in any litigation to which any CHR Party is a party (including derivative actions), arbitration proceedings or proceedings of any Governmental Authority which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or solely with respect to Seller, is or could reasonably be expected to be for an amount (or economic equivalent thereof) equal to or in excess of $10,000;
(g) the average of the Default Ratios for the three preceding Settlement Periods shall at any time exceed 3.25%;
(h) the average of the Dilution Ratios for the three preceding Settlement Periods shall at any time exceed 1.50%;
(i) the average of the Delinquency Ratios for the three preceding Settlement Periods shall at any time exceed 5.50%;
(j) on any date, after giving effect to the payments made under Section 3.1(c), either (i) the sum of the aggregate Purchasers’ Total Investment and the Required Reserves exceeds the Net Portfolio Balance, or (ii) Purchasers’ Total Investment exceeds the Purchasers’ Total Commitment;
(i) a Change of Control shall occur or (ii) any Originator shall at any time cease to own or control all notes or other evidences of debt of Seller to it in respect of any unpaid purchase price of Pool Receivables (including any Subordinated Note in favor of such Originator);
(l) [Intentionally omitted];
(m) [Intentionally omitted];
(n) any CHR Party shall make any change in any of the Credit and Collection Policies except as permitted by this Agreement;
(A) Administrative Agent, on behalf for the benefit of the Secured Affected Parties, shall cease fails at any time to have a valid and perfected first priority ownership interest or first priority perfected security interest in the Pledged Contracts Pool Receivables and Collections with respect thereto to the extent such security interest can be perfected by filing a financing statement or the execution of an account control agreement, any Related Assets (or any other Collateralportion thereof) and all cash proceeds of any of the foregoing, in each case, free and clear of any Adverse Claim or (B) Administrative Agent shall fail to have a valid first priority perfected security interest in each Lock-Box Account (and all amounts and instruments from time to time on deposit therein), for the benefit of the Administrative Agent;
(fp) An Event either (i) the Internal Revenue Service shall file notice of Bankruptcy a lien pursuant to Section 6323 of the Code with regard to any assets of any CHR Party and such lien shall occur not have been released within five (5) days or (ii) the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of any CHR Party or any of their Affiliates;
(i) the occurrence of a Reportable Event; (ii) the adoption of an amendment to a 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 Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code with respect to any Plan (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of any CHR Party or any of their respective ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any CHR Party or any of their respective ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan or Multiemployer Plan; (vii) the receipt by any CHR Party or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to any CHR Party or any of their respective ERISA Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or condition with respect to a Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(r) any CHR Party shall be required to register as an “investment company” within the meaning of the Investment Company Act;
(s) any CHR Party fails to cooperate in Administrative Agent’s assumption of exclusive control of any Lock-Box Account subject to any Lock-Box Agreement or Administrative Agent is unable to obtain exclusive control thereof in accordance with Section 8.3(b) or such Lock-Box Agreements;
(t) any Transaction Document or any of the terms thereof shall cease to be the valid and binding obligation enforceable against any CHR Party;
(gu) A Seller shall fail to pay in full all of its obligations to Administrative Agent and Purchasers hereunder and under the other Transaction Documents on or prior to the Legal Final;
(v) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than judgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) shall be rendered against any CHR Party or any Subsidiary of any CHR Party or any combination thereof and the same shall remain undischarged for a period of 30 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 CHR Party or any Subsidiary of any CHR Party to enforce any such judgment which is not effectively stayed for a period of 10 consecutive days;
(w) one or more judgments shall be rendered against Seller;
(x) Receivables cease being sold or contributed to the Seller pursuant to the Sale Agreement;
(y) the Performance Guaranty is canceled, rescinded, amended or modified without the prior written consent of Administrative Agent and each Purchaser Agent; or
(z) any Master Servicer Default shall occur;Termination Event.
Appears in 1 contract
Samples: Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENTS OF TERMINATION") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer if Ferro Corporation or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained under this Agreement (other than as referred to in clause (ii) or (iii) of this subsection (a)) and such failure shall remain unremedied for five Business Days or (ii) shall fail to deliver the monthly Seller Report when due and such failure shall remain unremedied for three Business Days or (iii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) Ferro Corporation shall fail to transfer to the Agent when requested any rights, pursuant to this Agreement, which Ferro Corporation then has as Collection Agent, or the Seller or an Originator shall fail to make any payment required under Section 2.04; or
(c) Any representation or warranty made or deemed made by the Seller or the Collection Agent (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document or any information or report delivered by the Seller or the Collection Agent pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller or an Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Agent; or
(e) The Program AgentSeller or an Originator shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $5,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, on behalf 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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any purchase or any reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the Secured Parties, pertinent Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.10 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect collateral security referred to any Transaction Party;in that section; or
(g) A Servicer Default The Seller or an Originator 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 or an Originator 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 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 the Seller or an Originator shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) As of the last day of any calendar month, either (i) the average of the Default Ratios for such month and the two immediately preceding months shall exceed 6.0% or (ii) the average of the Dilution Ratios for such month and the two immediately preceding months shall exceed 9.0% or (iii) the Loss-to-Liquidation Ratio shall exceed 0.5%; or
(i) The sum of the Receivable Interests shall on any Business Day be greater than 100%; or
(j) There shall have occurred any material adverse change in the financial condition or operations of the Seller or an Originator since December 31, 1999; or there shall have occurred any event which may materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement; or
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Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (if other than as described in clause the Purchaser) (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) or (iii) of this subsection (a)) and such failure, if capable of being cured, shall remain unremedied for ten days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement or (iii) shall fail to deliver any Seller Report when required and such failure shall remain unremedied for one Business Day (provided that the grace period in this clause (iii) may not be utilized more than once in any Month); or
(b) Any Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b); or
(c) Any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and the applicable Seller shall have made any required deemed Collection payment pursuant to Section 2.04 with respect to such Receivables) made or deemed made by any Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by any Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) Any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made such Seller by the BorrowerPurchaser or its assignees, the Originatorprovided that failure to perform or observe any covenant contained in Sections 5.01(b), the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report5.01(d), any Monthly Serviced Portfolio Report5.01(g), any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (dand 5.01(h) shall not apply be entitled to any the benefit of such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;10-day period; or
(e) The Program Agent, Any Seller or the Collection Agent (if other than the Purchaser) shall fail to pay any principal of or premium or interest on behalf any of the Secured Parties, shall cease to have its Debt which is outstanding in a valid and perfected first priority security interest principal amount of at least $25,000,000 in the Pledged Contracts aggregate when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any Purchase of Receivables or Participation Interests hereunder, the Related Security and the Collections with respect thereto or shall for any other Collateral;
(f) An Event reason cease to constitute valid and perfected ownership of Bankruptcy shall occur with respect to such Receivables, Participation Interests, Related Security and Collections free and clear of any Transaction Party;Adverse Claim; or
(g) A Servicer Default Any Seller or the Collection Agent (if other than the Purchaser) 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 any Seller or the Collection Agent (if other than the Purchaser) 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, 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 any Seller shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) an Event of Termination shall have occurred under the Financing Agreement; or
(i) There shall have occurred any event which may materially adversely affect the collectibility of the Purchased Receivables or Participated Receivables or the ability of any Seller to collect Purchased Receivables or Participated Receivables or otherwise perform its respective obligations under this Agreement; then, and in any such event, the Purchaser may in its sole discretion without regard to Section 9.08, by notice to the Parent and the Sellers take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), and all Purchases hereunder shall cease immediately and (y) following the RFA Final Payment Date, without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed HQ (or any successor Collection Agent) as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur, HQ (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Purchaser (or, prior to the RFA Final Payment Date, the Person designated under the Financing Agreement) shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Events of Termination. If This Agreement may, by notice given in the manner hereinafter provided, be terminated and abandoned at any time prior to completion of the following events (eachClosing, an “Event of Termination”) shall occuras follows:
(a) The Borrower by BGS if (1) there has been a material Breach (as defined below) by EFactor and, in the case of a covenant or agreement Breach, such Breach shall fail not have been cured within ten (10) days after receipt by EFactor of notice specifying particularly such Breach, (2) if BGS determines in its sole discretion as a result of its due diligence review of EFactor that it does not wish to make any payment (x) of principal in respect of proceed with the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when dueExchange;
(b) The Borrowerby EFactor if (1) there has been a material Breach by BGS or the BGS Shareholders and, in the Originatorcase of a covenant or agreement Breach, such Breach shall not have been cured within ten (10) days after receipt by BGS of notice specifying particularly such Breach, (2) if EFactor determines in its sole discretion as a result of its due diligence review of BGS that it does not wish to proceed with the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;Exchange; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or by mutual agreement contained in this of BGS and EFactor. This Agreement or any other Facility Document on its part to may not be performed or observed and any such failure shall remain unremedied for five (5) Business Days terminated after any Affected Party gives notice thereof to a Responsible Officer completion of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or Closing. There shall be deemed to be made by the Borrowera “Breach” of a representation, the Originatorwarranty, the Servicer covenant, obligation, or other provision of this Agreement if there is or has been (a) any inaccuracy (subject to applicable knowledge and materiality qualifiers, if any) in, or breach of, or any Performance Guarantor under failure to comply with, or in connection with this Agreement or any other Facility Document (including any Monthly Reportperform, any Monthly Serviced Portfolio Reportsuch representation, any Borrowing Base Certificatewarranty, any Borrowing Request covenant, obligation, or other information provision, or report delivered pursuant hereto(b) any claim (by any Person) or other circumstance that is inconsistent with such representation, warranty, covenant, obligation, or other provision; and the term “Breach” shall prove be deemed to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply refer to any such representation inaccuracy, breach, failure, claim, or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;circumstance.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (if other than as described in clause the Agent or its designee) (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.01(a)) and such failure shall remain unremedied for three Business Days or (ii) shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) The Seller or the Originator shall fail (i) to transfer to the Agent when requested by the Agent any rights pursuant to this Agreement which it has as Collection Agent, (ii) to perform or observe any term, covenant or agreement contained in Section 5.03(e) or Section 6.03(a), (iii) to make any payment required under Section 10.01 or (iv) to turn over to the Collection Agent the amounts referred to in Sections 2.06(e)(i) and (ii); or
(c) Any representation or warranty made or deemed made by the Seller or the Collection Agent (or any of their respective officers) under or in connection with this Agreement, any other Transaction Document, any Seller Report or any other information or report delivered by the Seller or the Collection Agent pursuant hereto or any Transaction Document shall prove to have been incorrect in any material respect when made or deemed made or delivered; or
(d) The Seller or the Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, Seller or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Originator by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Agent; or
(e) The Program Agent, Seller or the Originator shall fail to pay the principal of or interest on behalf any obligation of the Secured PartiesSeller or the Originator for borrowed money (it being agreed that neither the Notes nor the Certificates are such an obligation) in an outstanding amount of $10,000,000 or more when due, whether by acceleration, by required prepayment or otherwise, for a period longer than any period of grace provided in such obligation, or fail to perform any other term, condition or covenant contained in any such obligation, the effect of which is to cause, or to permit the holder of such obligation or others on its behalf to cause, such obligation then to become due prior to its stated maturity, unless such failure shall have been cured or effectively waived; or
(f) Any Purchase of a Receivable Interest pursuant hereto or any reinvestment shall for any reason, except to the extent permitted by the terms hereof, cease to have create a valid and perfected first priority undivided percentage ownership interest to the extent of such Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or this Agreement shall for any reason cease to evidence the transfer to the owner thereof of legal and equitable title to, and ownership of, an undivided percentage ownership interest in Pool Receivables and Related Security to the extent of the applicable Receivable Interest; or the security interest created pursuant to Section 2.10 shall for any reason (but subject to the Pro Rata RRB Interest) cease to be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto collateral security referred to in that section; or
(i) The 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 any proceeding shall be instituted by or against the Originator or any of its Significant Subsidiaries 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, or other Collateral;similar official for it or for any substantial part of its property and, if instituted against the Originator or any of its Significant Subsidiaries, either such proceeding shall not be stayed or dismissed for 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against it 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 (ii) the Originator or any of its Significant Subsidiaries shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (g); or
(fh) An Event of Bankruptcy The Delinquency Ratio shall occur with respect to at any Transaction Party;time exceed 7%, the Default Ratio shall at any time exceed 8% or the Loss-To- Liquidation Ratio shall at any time exceed 2%; or
(gi) A Servicer Default The Net Receivables Pool Balance shall occur;at any time be less than 105% of the sum of Capital, Yield Reserve, Collection Agent Fee Reserve and Loss and Dilution Reserve for all Receivable Interests at such time and such condition shall continue for three Business Days after the Seller shall become aware of such condition; or
(j) There shall have occurred any event which may materially adversely affect the ability of the Seller or the Originator to perform its obligations under this Agreement or the collectibility of the Pool Receivables; or
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Northeast Utilities System)
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENTS OF TERMINATION") shall occuroccur and be continuing:
(ai) The Borrower Collection Agent (if other than the Agent or Citibank) shall fail to make perform or observe any payment term, covenant or agreement hereunder (xother than as referred to in clause (ii) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to this Section 2.05(b) or otherwise7.01(a)) and without giving effect to availability of funds) such failure shall remain unremedied for three Business Days or (yii) of Interest on the Loans Seller or Liquidity Fees when due;
the Collection Agent (bif other than the Agent or Citibank) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document the Fee Letter when due and such failure shall continue unremedied for three (3) Business Days;due; or
(cb) The Borrower, Seller or the Originator, the Servicer or any Performance Guarantor Collection Agent shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(e) or (g), 5.02(c), 5.03, 5.04(e) or (g), or 5.05 of this Agreement, or any Originator shall fail to perform or observe any term, covenant or agreement contained in Section 4.01(g), (i) or (j)(iii) or 4.02 of the Receivables Contribution and Sale Agreement; or
(c) Any representation or warranty made or deemed to be made by the Seller or any Originator or the Collection Agent (or any of their officers) under or in connection with this Agreement or any other Facility Transaction Document or any Seller Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(d) The Seller or any Originator shall fail to perform or observe any other term, covenant or agreement contained in any Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) seven Business Days after any Affected Party gives written notice thereof shall have been given by the Agent to a Responsible Officer the Seller or such Originator; or
(e) The Seller or any Originator shall fail to pay any Debt, in the case of the BorrowerSeller, in excess of $5,000, and, in the case of such Originator, in excess of $20,000,000, or any interest or premium thereon, 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 Debt; or any other default under any agreement or instrument relating to any such Debt, 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 Originatormaturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(f) Any Purchase or any reinvestment pursuant to Section 2.05 shall for any reason, except to the extent permitted by the terms hereof, cease to create, or any Eligible Asset shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Eligible Asset in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or
(i) The Seller, any Originator or the Collection Agent 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, such Originator or the Collection Agent 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, or other similar official for it or for any substantial part of its property and, if instituted against the Seller, such Originator or the Collection Agent, either such proceeding shall not be stayed or dismissed for 30 days or any of the actions sought in such proceeding (including, without limitation, the Servicer entry of an order for relief against it 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 (ii) the Seller, such Originator or the Collection Agent shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (g); or
(h) The average of the Default Ratios for each of the three most recently ended calendar months shall exceed 6%, or the average of the Delinquency Ratios for each of the three most recently ended calendar months shall exceed 10%; or
(A) During any Investment Grade Period or any Performance GuarantorBelow Investment Grade Period, the aggregate undivided percentage interest for all Eligible Assets and the "Eligible Assets" under and as defined in the Investor Agreement shall exceed 95% for five consecutive Business Days or (B) during any Collateral Account Period, the Net Receivables Pool Balance shall be less than the Required Net Receivables Pool Balance for a period of two consecutive Business Days or more after delivery of a Daily Seller Report for any Settlement Period; or
(j) There shall have been any material adverse change in the financial condition or operations of the Originators, taken as a whole, since December 31, 2001, or 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 Seller or the Collection Agent to collect Pool Receivables or the ability of the Seller or the Collection Agent to perform hereunder; or
(k) Any material provision of any Transaction Document shall for any reason cease to be a legal, valid and binding obligation of the Seller or any Originator, as applicable, or the Borrower, the Originator, the Servicer Seller or any Performance GuarantorOriginator, as applicable, otherwise obtains knowledge thereof;shall so state in writing; or
(dl) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, PolyOne shall cease to own directly or indirectly 100% of the outstanding shares of stock of the Seller; or
(m) Any "Event of Default" under and as defined in the Credit Agreement shall have occurred and be continuing; or
(n) All of Polyone's long-term public senior unsecured and unguaranteed debt securities, if rated, are rated below BB- by S&P or rated below Ba3 by Xxxxx'x or, if not rated, such securities are deemed to have a rating below BB- in the sole discretion of the Agent; or
(o) The charter or by-laws of the Seller shall be amended, supplemented or otherwise modified without the consent of the Agent (and without the consent of the Group Managing Agents); or
(p) This Agreement shall cease to create in favor of the Agent, as security for the Secured Obligations, a valid and security interest in the Collateral, or such security interest shall cease to be a perfected first priority security interest upon the filing of the financing statements referred to in Section 3.01(h); or
(q) There shall have occurred and be continuing any event that constitutes an "Event of Investment Ineligibility" under and as defined in the Pledged Contracts Investor Agreement; then, and Collections in any such event, the Agent shall at the request, or may with the consent, of the Majority Investor Groups, by notice to the Seller, declare the Commitment Termination Date to have occurred, whereupon the Commitment Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all without any further actions on its part, which are hereby expressly waived by the Seller; PROVIDED, HOWEVER, that the Majority Investor Groups shall not be entitled to make any request of the Agent to declare the Commitment Termination Date to have occurred as to any such event if (x) the Agent has granted a waiver in respect thereto of such event pursuant to Section 11.01 hereof so long as such waiver is effective or (y) no Members of any other Collateral;
(f) An Event Investor Group have made any Purchase of Bankruptcy shall occur an Eligible Asset under this Agreement; PROVIDED FURTHER, HOWEVER, that in the event of an actual or deemed entry of an order for relief with respect to the Seller or any Transaction Party;
Originator under the Federal Bankruptcy Code or the occurrence of any event described in Section 7.01 (g) A Servicer Default of the Investor Agreement, the Commitment Termination Date shall automatically occur;, without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Seller. Upon any occurrence of the Commitment Termination Date, the Agent and the Banks shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. Without limiting the foregoing or the general applicability of Article IX hereof, any Bank may elect to assign pursuant to Article IX hereof any Eligible Asset owned by such Bank to an Eligible Assignee following the occurrence of any Event of Termination.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Seller shall fail to make any payment (x) of principal in respect of required under the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document Agreement when due and such failure shall continue remain unremedied for three (3) Business Days;; or
(b) Any representation or warranty (other than those covered under Section 2.04(c) or 2.04(d)) made or deemed made by the Seller (or any of its respective officers) under or in connection with this Agreement or any information or report delivered by the Seller pursuant to this Agreement shall have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for twenty days (or with respect to any covenant contained in Section 5.01(a), (b), (h), (i), (j)(ii)-(vi), (k), (m), (n), (o) or (p), any such failure shall remain unremedied for five Business Days, or, with respect to any covenant contained in Section 5.01(d), (5e), (g), (h) Business Days or (j)(i), upon such failure to so comply with such covenant), in each case upon the earlier of actual knowledge or after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the BorrowerSeller by the Purchaser, the Originator, the Servicer Administrator or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;its assignees; or
(d) Any representation or warranty made or deemed to be made by the BorrowerPurchase of Receivables hereunder, the OriginatorRelated Security and the Collections with respect thereto shall for any reason cease to constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim of the Servicer Seller, its receiver, conservator or trustee, or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by of its terms) when made or deemed made or delivered;creditors; or
(e) The Program AgentSeller 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 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 90 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 the Seller shall take any action to authorize any of the actions set forth above in this subsection (e); or
(f) There is a “Termination Event” under the Receivables Sale Agreement;
(g) There shall have occurred any material adverse change in the financial condition or results of operations of the Seller since December 31, 2011, or there shall have occurred any event which materially adversely affects the collectability of the Sold Receivables or the ability of the Purchaser to collect Sold Receivables; or
(h) The failure of the Seller to maintain shareholder's equity of at least $100 million. then, the Facility Termination Date shall have occurred automatically in the case of (e) above, and in any such other event, the Administrator, on behalf of the Secured PartiesPurchaser may, shall cease by notice to the Seller, declare the Facility Termination Date to have a valid occurred (in which case the Facility Termination Date shall be deemed to have occurred). Upon any such occurrence or declaration, the Purchaser shall have, in addition to the rights and perfected first priority security interest in the Pledged Contracts remedies under this Agreement, all other rights and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Alliance One International, Inc.)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make occurrence of any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;Collection Agent Default; or
(b) The Borrower, Seller or the Originator, the Servicer or any Performance Guarantor Originator shall fail following a Collection Agent Default, to transfer to the Agent when requested, any rights pursuant to this Agreement or the OPA Assignment, which the Seller or the Originator then has as Collection Agent, or (ii) to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;Section 2.04; or
(c) The Borrower, Any representation or warranty made or deemed made by the Originator, Seller or the Servicer Collection Agent under this Agreement or any Performance Guarantor other Transaction Document or any written information or report (including, without limitation, any E-Mail Seller Report) delivered by the Seller or the Collection Agent pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and such condition, to the extent it is capable of being remedied, shall remain unremedied for 10 days; or
(d) The Seller or the Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Agent; or
(e) The Program AgentSeller or the Originator shall fail to pay any payment of principal, on behalf face amount, interest, premium, fees or any similar obligation in respect of any Debt in an aggregate amount exceeding $25,000,000 when due or within any applicable grace period (provided, that if Section 6.01(e) of the Secured PartiesOriginator's existing $500,000,000 credit agreement, dated as of March 31, 1997, is amended to provide that no "Event of Default" under such credit agreement will result until such Debt is declared to be or otherwise becomes due and payable in such aggregate amount, then this clause (e) shall not constitute an Event of Termination hereunder unless such Debt is declared to be or otherwise becomes due and payable in such aggregate amount); or
(f) Any purchase or any reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to have create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership or security interest (as understood under the UCC) to the extent of the pertinent Receivable Interest in each applicable Pool Receivable and the Pledged Contracts Related Security and Collections with respect thereto thereto; or the interest created under the OPA Assignment shall for any other Collateral;
(f) An Event of Bankruptcy shall occur with respect reason cease to any Transaction Party;be a valid and ownership interest thereunder; or
(g) A Servicer Default The Seller or the Originator 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 or the Originator 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 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 the Seller or the Originator shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) As of the last day of any calendar month, the three month rolling average of (w) the Dilution Ratio shall exceed 5.3%, (x) the Default Ratio shall exceed 6%, (y) the Delinquency Ratio shall exceed 5.2%, or (z) the Loss-to-Liquidation Ratio shall exceed 1%; or
(i) The Net Receivables Pool Balance shall on any Business Day be less than 100% of the sum of the aggregate outstanding Capital of all Receivable Interests or the sum of the Receivable Interests shall on any 5 consecutive Business Day be greater than 95%; or
(j) There shall have occurred any event or events that results in a Material Adverse Effect; or
Appears in 1 contract
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occuroccur and be continuing:
(a) The Borrower A Purchaser shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration required under Section 1.05 or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;1.07 for five Business Days; or
(b) The BorrowerAny representation or warranty made by Hertz, the OriginatorHGI or HVF under this Agreement or any written information or report (including, without limitation, any New Vehicle Schedule, Rejected Vehicle Schedule or Transferred Vehicle Schedule) delivered by the Servicer pursuant to this Agreement shall prove to have been incorrect or untrue in any Performance Guarantor shall fail to make any payment material respect when made or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due delivered and such failure condition, to the extent it is capable of being remedied, shall continue remain unremedied for three (3) Business Days;10 days; or
(c) The BorrowerHertz, the Originator, the Servicer HGI or any Performance Guarantor HVF shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives the earlier of the date that written notice thereof shall have been given to a Responsible Officer of the BorrowerHertz, HGI, HVF, the Originator, the Servicer or any Performance Guarantor, as applicable, Trustee or the BorrowerCollateral Agent, and the Originatordate that Hertz, the Servicer HGI or any Performance Guarantor, as applicable, otherwise obtains HVF has actual knowledge thereof;; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;A Liquidation Event of Default occurs; or
(e) The Program AgentAny purchase of New HVF Vehicles, on behalf of the Secured Parties, Rejected Vehicles or Transferred Vehicles hereunder shall for any reason cease to have a transfer valid ownership of such New HVF Vehicles, Rejected Vehicles or Transferred Vehicles to the Purchaser thereof free and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or clear of any Lien other Collateral;than Permitted Liens; or
(f) An Event of Bankruptcy shall occur occurs with respect to any Transaction Party;Hertz or a Seller; or
(g) A Servicer Default shall occur;occurs; or
(h) An Amortization Event with respect to each Series of Notes Outstanding occurs. then, and in any such event, each of HGI and HVF will no longer be obligated to buy or sell Vehicles under this Agreement.
Appears in 1 contract
Samples: Participation, Purchase and Sale Agreement (Hertz Corp)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower Sellers' Agent shall fail (i) to transfer to the Purchaser when requested any rights, pursuant to this Agreement, which the Sellers' Agent then has and such failure shall have a material adverse effect upon the interest of the Purchaser and shall remain unremedied for thirty (30) days after written notice thereof shall have been given to the Sellers' Agent by the Purchaser, or (ii) to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to required under Section 2.05(b2.04(a) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;2.04(b); or
(b) The Borrower, the Originator, the Servicer Any representation or warranty made or deemed made by a Seller (or any Performance Guarantor of its officers) under or in connection with this Agreement or any written information or report delivered by a Seller pursuant to this Agreement shall fail prove to make have been incorrect or untrue in any payment material respect when made or deposit required to be deemed made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due delivered and such failure breach shall continue have a material adverse effect upon the interest of the Purchaser and shall remain unremedied for three thirty (330) Business Days;days after written notice thereof shall have been given to the Sellers' Agent by the Purchaser; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor A Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five thirty (530) Business Days days after any Affected Party gives written notice thereof shall have been given to the Sellers' Agent by the Purchaser (or, with respect to a Responsible Officer failure to deliver the Monthly Report pursuant to this Agreement, such failure shall remain unremedied for five days, without a requirement for notice) and such failure shall have a material adverse effect on the interest of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Purchaser; or
(d) Any representation or warranty made or deemed to be made by the BorrowerPurchase of Receivables hereunder, the OriginatorRelated Security and the Collections with respect thereto shall for any reason cease to constitute valid and perfected ownership interest or security interest in such Purchased Receivables, the Servicer or Related Security and Collections free and clear of any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Adverse Claim; or
(e) The Program AgentA Seller or any of its subsidiaries shall generally not pay its debts as such debts become due, on behalf 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 a Seller or any of its subsidiaries 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 sixty (60) days, or any of the Secured Partiesactions 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 cease to have a valid and perfected first priority security interest in occur; or the Pledged Contracts and Collections with respect thereto Seller or any other Collateral;of its subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) An The occurrence of an Event of Bankruptcy Default under the Credit Agreement and such Event of Default shall occur with respect remain unremedied for five (5) days after written notice thereof shall have been given to any Transaction Party;the Sellers' Agent by the Purchaser; or
(g) A Servicer Default An Event of Termination shall have occurred under the Sale Agreement; then, and in any such event, the Purchaser may, by notice to the Sellers' Agent, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (e) of this Section 7.01, the Facility Termination Date shall occur;. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Purchased Receivables provided after default under the PPSA and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Samples: Receivables Transfer and Administration Agreement (Coltec Industries Inc)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occur:
(ai) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (if other than as described in clause (athe Deal Agent) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.01(a)) and such failure shall remain unremedied for two Business Days or (ii) either the Collection Agent (if other than the Deal Agent) or the Seller shall fail to make any payment or deposit to be made by it hereunder when due; or
(i) Any representation or warranty made or deemed to be made by the Seller (or any of its officers or agents) under or in connection with this Agreement or any Asset Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made or (ii) any representation or warranty made or deemed to be made by the Originator or the Collection Agent (or any of their respective officers or agents) under or in connection with the Originator Sale Agreement or this Agreement (as the case may be) shall prove to have been false or incorrect in any material respect when made; or
(c) Either the Seller or the Originator (individually or in its capacity as Collection Agent) shall fail to perform or observe any term, covenant or agreement (other than any term covenant, or agreement described in either of clauses (a) or (b) above) contained in this Agreement or any other Facility Document in the Originator Sale Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives written notice thereof shall have been given by the Deal Agent to a Responsible Officer the Seller; or
(i) The Seller or the Originator shall fail to pay any principal of or premium or interest on any Debt, if, in the Borrower, case of the Originator, the Servicer aggregate principal amount of such Debt is $500,000 or more, when the same becomes due and payable (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 Debt; or (ii) any other default or any Performance Guarantorevent which, as applicablewith the passage of time or the giving of notice, or both, would constitute a default under any agreement or instrument (other than the BorrowerRevolving Credit Agreement) relating to any such Debt, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument; or (iii) any "Event of Default" (other than a payment event of default) as such term is defined in the Revolving Credit Agreement or any event (however named in any successor Revolving Credit Agreement to the Revolving Credit Agreement in effect on the date hereof) under such successor agreement which with the passage of time or the giving of notice, or both, would constitute a default shall have occurred and be continuing for a period which exceeds the lesser of (x) 30 days and (y) the corresponding period set forth in documents relating to any Debt of Synthetic or its Affiliates having an aggregate principal balance of greater than $500,000 as the period during which the holders of such Debt are stayed from any enforcement or acceleration as a result of the occurrences of such an "Event of Default" or other event; or (iv) any Debt of the Seller or the Originator, if, in the Servicer case of the Originator the aggregate principal amount of such Debt is $500,000 or any Performance Guarantormore, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed shall be declared to be made by the Borrower, the Originator, the Servicer due and payable or any Performance Guarantor under or in connection with this Agreement or any required to be prepaid (other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified than by a materiality standard by its termsregularly scheduled required prepayment) when made or deemed made or delivered;prior to the stated maturity thereof; or
(e) The Program AgentEither (i) any Purchase, on behalf Capital Increase or remittance of Collections shall for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create a valid and perfected first priority undivided percentage ownership or security interest in each Purchased Receivable and the Pledged Contracts Related Security and Collections with respect thereto or (ii) any other Collateral;purchase by the Seller of a Receivable from the Originator shall, for any reason, cease to create in favor of the Seller a valid and perfected first priority ownership or security interest in each Purchased Receivable and the Related Security and Collections with respect thereto; or
(fi) An Event The Seller or the Originator 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 Bankruptcy creditors; or any proceeding shall occur with respect be instituted by or against the Seller or the Originator 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 Transaction Party;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 any substantial part of its property; or (ii) the Seller or the Originator shall take any corporate action to authorize any of the actions set forth in clause (i) above in this Section 7.01(f); or
(g) the Delinquency Ratio for any month shall exceed 4.00%, or the Dilution Ratio for any month shall exceed 4.20%, or the Average Maturity for any month shall exceed 75 days; or
(i) There shall have occurred and be continuing an "Event of Termination" under the Originator Sale Agreement, or (ii) the Originator Sale Agreement shall have ceased to be valid, binding and enforceable as against any of the parties thereto without any amendment, modification, waiver or termination of any terms or conditions thereof, other than as agreed to in writing by the Deal Agent, or (iii) the Originator shall have ceased for any reason to sell all of the "Receivables" under and as defined in the Originator Sale Agreement to the Seller pursuant to the Originator Sale Agreement, or (iv) the assignment to the Deal Agent of all of the Seller's right and title to and interest in the Originator Sale Agreement shall have ceased, for any reason, to be fully effective and enforceable by the Deal Agent as against any of the parties of the Originator Sale Agreement; or
(i) Synthetic shall cease to own (whether directly or indirectly) 100% of the issued and outstanding stock of the Seller; or
(j) The Seller shall fail to make payment as specified in Section 2.05(b) and such failure shall remain unremedied for two Business Days after written notice thereof shall have been given by the Deal Agent to the Seller; or
(k) A Servicer Default Collection Agent Termination Event shall occur;have occurred and be continuing; or
(l) The date on which some or all of the "Liquidity Commitments" under the Liquidity Agreement shall cease to be effective or shall terminate without renewal; or
(m) The Originator, the Seller or the Collection Agent shall fail to perform or observe any material term, covenant or agreement contained in the Credit and Collection Policy; or
(n) A Coverage Shortfall Event shall exist and such Coverage Shortfall Event shall remain unremedied for five Business Days, or the Purchased Interest shall exceed 100% and such condition shall remain unremedied for five Business Days; or
(o) The Revolving Credit Agreement shall cease to (A) be in full force and effect, or (B) provide for a commitment to fund (subject only to conditions that are not materially more restrictive than those set forth in the Revolving Credit Agreement as in effect on the date hereof) in an aggregate amount of not less than $30,000,000; or
(p) The IRS or the PBGC shall have filed notice of one or more Adverse Claims against the Originator, the Seller or any ERISA Affiliate under ERISA or the Code, unless such Adverse Claim does not purport to cover the Receivables, and such notice shall have remained in effect for more than thirty (30) Business Days unless, prior to the expiration of such period, such Adverse Claims shall have been adequately bonded by such Originator, Seller or the ERISA Affiliate (as the case may be) in a transaction with respect to which the Deal Agent has given its prior written approval; or
(q) The Seller shall have become subject to registration as an "investment company" within the meaning of the Investment Company Act; or
(r) The Deal Agent shall have received an "Enforcement Notice" under the Intercreditor Agreement; then, and in any such event, the Deal Agent may, by notice to the Seller declare the Termination Date to have occurred, except that, in the case of any event described in Section 7.01(l), (n) or (q), or in clause (i) of Section 7.01(f) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, the Deal Agent and the Purchaser shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Synthetic Industries Inc)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower A Servicer Default shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;have occurred; or
(b) The BorrowerAny Seller, the Originatorany Affiliate of any Seller, the Servicer or any Performance Guarantor designee of any Seller, as the case may be, shall fail (i) to make transfer to the Purchaser when requested any payment rights which such Seller, such Affiliate or deposit required such designee, as the case may be, then has as Servicer within ten Business Days of the Purchaser's giving the notice referred to be made by it hereunder in Section 6.01(b) designating a new Servicer to succeed such Seller, such Affiliate or such designee, as the case may be, as Servicer, or (other than as described in clause (aii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;to comply with the requirements of Section 2.03(b); or
(c) The BorrowerAny representation or warranty made or deemed made by any Seller or Interco under or in connection with this Agreement, the OriginatorOriginal PCA or the Interco Agreement or any information or report delivered by any Seller or Interco under or in connection with this Agreement, the Servicer Original PCA or the Interco Agreement or any Performance Guarantor Monthly Report or other information or report delivered pursuant hereto or thereto or the Interco Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and (if correctable) shall remain incorrect or untrue for ten days after the earlier of actual knowledge by such Seller or Interco, as the case may be, of such incorrectness or untruth or written notice to such Seller or Interco thereof, as the case may be; or
(i) Any Seller shall fail to perform or observe any covenant contained in Xxxxxxx 0.00, xxxxxxxxx (x), (x), (x), (x), (x) or (g) of this Agreement and any such failure shall remain unremedied for twenty days after the earlier of such Seller's actual knowledge thereof or written notice to such Seller thereof, or (ii) any Seller or Interco shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or the Interco Agreement (other than as described in paragraph (a) above or clause (i) of this paragraph (d)) or in any other Facility Document agreement delivered in connection herewith on its such Seller's or Interco's part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days ten days after any Affected Party gives the earlier of such Seller's or Interco's actual knowledge thereof or written notice thereof shall have been given by the Purchaser to a Responsible Officer of the Borrower, the Originator, the Servicer such Seller or any Performance GuarantorInterco, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;case may be; or
(e) The Program Agent, Any Seller or Interco or any of its Subsidiaries shall fail to pay any principal of or premium or interest on behalf any of the Secured Parties, shall cease to have its Indebtedness which is outstanding in a valid and perfected first priority security interest principal amount of at least $10,000,000 in the Pledged Contracts aggregate when the same becomes due and Collections with respect thereto payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), or any other Collateral;event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, and such failure to pay, event or condition shall continue after the applicable grace period, if any, specified in such agreement or instrument, and as a result thereof, the maturity of such Indebtedness is accelerated; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid in full (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Indebtedness in full shall be required to be made, in each case prior to the final stated maturity thereof; or any such Indebtedness shall fail to be paid at the final stated maturity thereof; or
(f) An Any Purchase or contribution of Receivables hereunder, the Related Security with respect thereto, and the Collections with respect thereto, shall for any reason cease to constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim except as provided for herein; provided, however, that no Event of Bankruptcy Termination shall occur under this paragraph (f) if (i) the aggregate Outstanding Balance of the Receivables described above in this paragraph (f) does not exceed $250,000 at any time and (ii) the relevant Seller or Sellers repurchase all of such Receivables in accordance with the terms of Section 2.04(b) on or prior to the next Settlement Date; or
(g) Any Seller or Interco shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Seller or Interco 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 any Seller or Interco (but not instituted by any of them), either such proceeding shall remain undismissed or unstayed for a period of 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 any Seller or Interco shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) an Event of Termination shall have occurred under the CL Sale Agreement; or
(i) Interco shall cease to own, directly or indirectly, a number of shares of any Seller sufficient to elect a majority of the board of directors of such Seller; then, and in any such event, the Purchaser may, by notice to the Sellers, declare the Facility Termination Date to have occurred, except that, in the case of any event described above in subsection (g) with respect to any Transaction Party;
(g) A Servicer Default Seller, the Facility Termination Date shall occur;be deemed to have occurred automatically upon the occurrence of such event. Upon any such termination of the Facility, the Purchaser shall have, in addition to all the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC of the applicable jurisdiction and under other applicable laws, which rights and remedies shall be cumulative.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if United Rentals or any of its Affiliates) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this paragraph (a)) in any material respect (or, if such term, covenant or agreement is qualified by materiality, material adverse effect or a similar qualification, in any respect) and such failure shall remain unremedied for three (3) 10 Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) The Originator shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to required under Section 2.05(b2.05(a) or otherwise) 2.05(b), and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure to pay shall continue remain unremedied for three two (3) 2)three Business Days;; or
(c) The BorrowerAny representation or warranty made or deemed made by the Originator or United Rentals (or any of its officers) pursuant to this Agreement or the Performance Undertaking Agreement or any other Transaction Document or any information or report delivered by the Originator pursuant to this Agreement or any other Transaction Document or United Rentals pursuant to this Agreement or the Performance Undertaking Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, and such incorrectness or untruth is incapable of remedy or, if capable of remedy, is not corrected or cured within fifteen (15)30 days of the earlier of any Responsible Officer of the Originator or United Rentals becoming aware of such incorrectness or untruth or written notice thereof being given to the Originator or United Rentals by the Buyer; or
(d) United Rentals or the Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed in any material respect (or, if such term, covenant or agreement is qualified by materiality, material adverse effect or a similar qualification, in any respect) and any such failure shall remain unremedied for ten (10)30 days after written notice thereof shall have been given to United Rentals or the Originator, as applicable by the Servicer Buyer; or
(e) United Rentals or any of its Subsidiaries shall fail to pay its Debt and other obligations, including liabilities in respect of Taxes, before the same shall become delinquent or in default, except where (a)(i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) United Rentals or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (iii) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation and (iv) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect or (b) the aggregate uninsured and unpaid amount is less than $25150,000,000 and does not include Taxes or the failure to make payment couldwould not reasonably be expected to result in a Material Adverse Effect; or
(f) Any purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to constitute valid ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim other than the security interest created pursuant to Section 5.02 hereof (other than any Adverse Claim arising under or permitted by any Transaction Document), and such default is incapable of remedy or, if capable of remedy, (x) the value of such percentage ownership or security interest shall not exceed $255,000,000 and (y) such default is not corrected or cured within seven (7) 10 Business Days after any Responsible Officer of the Originator becoming aware of such default or written notice thereof being given to the Originator by the Buyer; or
(g) The Originator or United Rentals 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 file a notice of intention to make a proposal to some or all of its creditors; or any proceeding shall be instituted by or against the Originator or United Rentals 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, 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 United Rentals shall take any corporate action to authorize any of the actions set forth above in this paragraph (g);
(h) There shall have occurred any material adverse change in the business, operations, property or financial condition of the Originator or United Rentals and its Subsidiaries, taken as a whole, since the end of its most recent fiscal quarter; or there shall have occurred any event which couldwould reasonably be expected to materially adversely affect (as determined by the Banks in their sole and absolute discretion) the collectibilitycollectability of the Transferred Receivables or the ability of the Originator to collect Transferred Receivables or otherwise perform its obligations under this Agreement; or
(i) The Performance Guarantor Undertaking Agreement shall cease to be in full force and effect or United Rentals shall fail to perform or observe any term, covenant or agreement contained in this the Performance Undertaking Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) ten 10 Business Days after any Affected Party gives written notice thereof to a Responsible Officer of shall have been given by the Borrower, Buyer (or the Originator, the Servicer Administrative Agent or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, Purchaser Agent on behalf of the Secured PartiesBuyer) to United Rentals; then, shall cease and in any such event, the Buyer may, by notice to the Originator, declare the Facility Termination Date to have a valid occurred (in which case the Facility Termination Date shall be deemed to have occurred) provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Buyer shall have, in addition to the rights and perfected first priority security interest in the Pledged Contracts remedies under this Agreement, all other rights and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement Section 6.02(g), or (iv) shall fail to deliver any other Facility Document on its part to be performed or observed Seller Report when due and any such failure shall remain unremedied for five (5) more than one Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Day; or
(db) The Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed to be made by the BorrowerSeller, the Originator, Collection Agent or the Servicer Undertaking Party (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including delivered hereunder or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, the Collection Agent or the Undertaking Party pursuant hereto) to this Agreement or any other Transaction Document delivered hereunder shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;; or
(d) The Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and, other than any failure to perform or observe under any of Sections 5.01(m) through (o) (for which there shall be no grace period), any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees; or
(e) The Program Agent, on behalf Any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of the Seller, IR Parent or Parent; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, the Seller or the Collection Agent (but not instituted by IR Parent, Parent, the Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, the Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Secondary Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of the Seller, the Collection Agent or the Undertaking Party to perform its respective obligations under this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by the Seller, the Collection Agent or the Undertaking Party hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of the Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of the Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) The Undertaking shall cease to be in full force and effect, or the Undertaking Party shall fail to (i) make any payment required by the Undertaking and such failure shall remain unremedied for three Business Days, or (ii) perform or observe any other term, covenant or agreement contained in the Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Purchaser or its assignees; then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENT OF TERMINATION") shall occuroccur and be continuing:
(a) The Borrower the Collection Agent (if the Seller or any of its Affiliates) shall fail to make any payment (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in under this Agreement (other than as referred to in clause (ii) of this subsection (a) or any other Facility Document on its part to be performed or observed subsection (d) below) and any such failure shall remain unremedied for five (5) the greater of ten Business Days after any Affected Party gives notice actual knowledge thereof to by a Responsible Officer responsible officer of the Borrower, Collection Agent and five Business Days after written notice by the Originator, Purchaser or its assign or (ii) to make when due any payment or deposit to be made by it under this Agreement three Business Days after the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;same is due; or
(db) Any the Seller shall fail to make any payment required hereunder three Business Days after the same is due; or
(c) any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or Seller in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller pursuant hereto) to this Agreement shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;delivered and, if, in the reasonable determination of the Purchaser or its assign, such failure can be corrected within 15 days, either the Seller is not making its best efforts to remedy the same or such failure shall continue unremedied for 20 days after the earlier of actual knowledge by a responsible officer of the Purchaser and written notice thereof by the Purchaser or its assign; or
(d) the Seller shall fail to perform or observe any of the following provisions of this Agreement: the first sentence of Section 5.01(b); Section 5.01(d); Section 5.01(h); Section 5.01(k)(iii)-(v); Section 5.01(l); or Section 6.02(b); or
(e) The Program Agentthe Seller shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $250,000 when the same becomes due and payable (whether by scheduled maturity, on behalf of required prepayment, acceleration, demand or otherwise), and such failure shall continue after the Secured Partiesapplicable grace period, shall cease to have a valid and perfected first priority security interest if any, specified in the Pledged Contracts agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) any Purchase of Receivables, the Related Security and the Collections with respect thereto or hereunder shall for any other Collateral;
(f) An Event reason cease to constitute valid and perfected ownership of Bankruptcy shall occur with respect to such Receivables, Related Security and Collections free and clear of any Transaction Party;Adverse Claim; or
(g) A Servicer the Seller 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 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, 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 Seller shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) an Event of Default shall have occurred under the Finance Agreement; or
(i) there shall have occurred any material adverse change in the financial condition or operations of the Seller since the date hereof; or there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of the Seller to collect Transferred Receivables or otherwise perform its obligations under this Agreement; then, and in any such event, the Purchaser may, by notice to the Seller, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed the Seller as Collection Agent; PROVIDED, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur;, the Seller (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Purchaser (or its assigns or designees) shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event of Termination”each a "Termination Event") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document of the Transaction Documents when due hereunder or thereunder and such failure shall continue remains unremedied for three one Business Day; or
(3b) Business Days;any representation, warranty, certification or statement made by any 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 other than any breach of a representation relating to a Receivable that has been repurchased pursuant to Section 2.03 or with respect to which the Buyer has declined to effect such repurchase as provided therein after receipt of notice of such breach; or
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe (i) any term, covenant or agreement contained in Sections 5.01(d), (f), (g), (h), and (l) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any and, solely in the case of this clause (ii), such failure shall remain unremedied for five ten (510) Business Days days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer such Seller has actual knowledge or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge receives written notice thereof;; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;Seller; or
(gi) A Servicer Default any Seller receives notice or becomes aware that a notice of lien has been filed against such Seller 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 (ii) (A) a Reportable Event or Reportable Events shall occur;have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (B) the Pension Benefit Guaranty Corporation shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (C) any Seller, any Subsidiary of any Seller or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) any Seller, any Subsidiary of any Seller or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, (E) any Seller, any Subsidiary of any Seller or any ERISA Affiliate shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or
Appears in 1 contract
Samples: Receivables Purchase Agreement (Nalco Global Holdings LLC)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make (i) any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor StarTek Party shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any other Facility Transaction Document on its part to be performed or observed and (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall remain unremedied continue for five ten (510) Business Days after the Seller or Master Servicer has knowledge or receives notice thereof, (ii) any Affected StarTek Party gives notice thereof shall fail to a Responsible Officer of the Borrower, the Originator, the Servicer make when due any payment or deposit to be made by it under this Agreement or any Performance Guarantor, as applicableother Transaction Document and such failure shall continue unremedied for two (2) Business Days, or (iii) StarTek shall resign as Master Servicer, and no successor Master Servicer reasonably satisfactory to the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofPurchaser shall have been appointed;
(db) Any any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer any StarTek Party (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by any StarTek Party pursuant hereto) to this Agreement or any other Transaction Document, shall prove to have been materially false incorrect or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) untrue when made or deemed made or delivered, and such failure to be correct or true shall cause a Material Adverse Effect;
(ec) The Program Agentthe Seller or the Master Servicer shall fail to deliver when due a Daily Report or a Monthly Report pursuant to this Agreement, on behalf of and such failure shall remain unremedied for two (2) Business Days;
(d) the Secured Parties, Purchaser shall for any reason cease to have a valid and perfected enforceable first priority perfected security interest (as defined in the Pledged Contracts and Collections UCC) with respect thereto to the Sold assets or the Seller Collateral, free and clear of any Adverse Claim;
(i) any StarTek 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; (ii) any Insolvency Proceeding shall be instituted by or against the Seller; (iii) any Insolvency Proceeding shall be instituted by or against any other StarTek Party and, in the case of any such proceeding instituted against such Person (but not instituted by such Person), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive 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 Collateralsimilar official for, it or for any substantial part of its property) shall occur; or (iv) any StarTek Party shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(f) An Event as of Bankruptcy the end of any Calculation Period, (i) the Three-Month Average Delinquency Ratio shall occur with respect to any Transaction Partyexceed 1.00%, (ii) the Three-Month Average Default Ratio shall exceed 1.00%, (iii) the Three-Month Average Dilution Ratio shall exceed 1.25%%, or (iv) the Days Sales Outstanding shall exceed 75 days;
(g) A Servicer Default a Change in Control shall occur;
(h) a Capital Coverage Deficit shall occur, and shall not have been cured within the period specified in Section 2.02(d);
(i) (i) any StarTek Party or any of their respective Subsidiaries (other than the Seller), individually or in the aggregate, shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $1,500,000 in the aggregate when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt, (ii) the Seller shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $16,750 in the aggregate when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt, or (iii) any default by any StarTek Party of any their respective Subsidiaries with respect to such Debt (as referred to in clause (i) of this paragraph) shall cause such Debt to be declared to be due and payable, or required to be prepaid, redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case before the stated maturity thereof;
(j) the Indemnification Guarantor shall fail to perform any of its obligations under the Indemnification Guarantee;
(k) the Seller shall fail (x) at any time (other than for up to ten (10) Business Days following notice of the death or resignation of any Independent Manager or the Seller’s becoming aware or receiving notice that any Independent Manager no longer satisfies each requirement and qualification specified in Section 8.03(c)) 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 Seller’s board of managers or (y) to timely notify the Purchaser of any replacement or appointment of any manager that is to serve as an Independent Manager on the Seller’s board of managers as required pursuant to Section 8.03(c) of this Agreement;
(l) either (i) the IRS shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Seller, any Originator or StarTek and, solely in the case of assets of any Originator or StarTek, realization on such lien results in a Change of Control of the Seller or any Originator, or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 303(k) or 4068 of ERISA with regard to any of the assets of any StarTek Party;
(i) an ERISA Event occurs with respect to a Plan, Multiemployer Plan or Foreign Plan which has resulted or would reasonably be expected to result in liability of any StarTek Party in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect or (ii) any StarTek Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its Withdrawal Liability under a Multiemployer Plan in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;
(i) an RSCA Termination Event shall occur under the RSCA or (ii) Receivables cease being sold or contributed to the Seller pursuant to the RSCA;
(o) the Indemnification Guarantee shall cease to be effective or to be the legally valid, binding and enforceable obligation of Indemnification Guarantor, or Indemnification Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder;
(p) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, any Originator, the Indemnification Guarantor or the Master Servicer (or any of their respective Affiliates) shall so state in writing;
(q) (i) one or more judgments, orders, or decrees shall be entered against any StarTek Party (other than the Seller) involving a liability of $1,500,000 or more, in the aggregate (to the extent not paid or covered by insurance provided by a carrier who has not disputed coverage) and such judgments, orders or decrees shall be final and unappealable and shall not have been paid in accordance with their terms when due, or vacated, satisfied, discharged, or stayed or bonded pending appeal within thirty (30) days from the entry thereof or (ii) one or more judgments, orders, or decrees involving a liability of $16,750 or more shall be entered against the Seller; or
(r) as of the last day of any calendar month, Available Liquidity shall be less than 10% of the lesser of the Facility Limit; then, and upon the occurrence and continuation of any such event, the Purchaser may by notice to the Seller (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred), (y) declare the Seller Obligation Final Due Date to have occurred (in which case the Seller Obligation Final Due Date shall be deemed to have occurred) and (z) declare the aggregate Capital outstanding and all other Seller Obligations to be immediately due and payable (in which case the aggregate Capital outstanding and all other 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) of this Section 10.01 with respect to the Seller, the Termination Date shall occur and the aggregate Capital outstanding and all other Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Purchaser 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 Sold Assets and Seller Collateral shall be applied in the order of priority set forth in Section 4.01.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower the Seller shall fail to make when due any payment or deposit to be made by it under this Agreement (x) of principal in including any payment with respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when dueany Deemed Collection);
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe (i) any term, covenant or agreement contained in Section 4.01(b), 4.01(d), 4.01(g), 4.01(h), 4.01(l), 4.01(o) or 4.01(q) or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five thirty (530) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofdays;
(dc) Any any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and the Seller shall have made any required Deemed Collection payment pursuant to Section 2.03 with respect to such Receivables) made or deemed to be made by the Borrower, the Originator, the Servicer Seller (or any Performance Guarantor of its SECONDARY PURCHASE AGREEMENT officers) under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller pursuant hereto) to this Agreement shall prove to have been materially false incorrect or incorrect untrue in any material respect when made or deemed made or delivered (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms);
(d) the Seller shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $10,000 in the aggregate when made the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or deemed made otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or deliveredinstrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof;
(e) The Program Agent, on behalf any Purchase of Transferred Assets hereunder shall for any reason cease to constitute valid and perfected ownership of such Transferred Assets or immediately prior to each Purchase hereunder the Secured Parties, Seller shall cease to have a valid and perfected first priority security ownership interest therein, or there shall exist any Adverse Claim in the Pledged Contracts and Collections with respect thereto or any other Seller Collateral;
(i) the Seller 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 the Seller 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, 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 Seller shall take any corporate action to authorize any of the actions set forth above in this subsection (f) An Event of Bankruptcy shall occur with respect to any Transaction Party);
(g) A Servicer Default an Event of Termination shall occur;have occurred under the Financing Agreement; or
(h) there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of the Seller to collect Transferred Receivables or otherwise perform its respective obligations under this Agreement or the other Transaction Documents; SECONDARY PURCHASE AGREEMENT then, and in any such event, the Purchaser may, by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), and all Purchases hereunder shall cease immediately; provided, however, that in the case of any event described in clause (f)(ii) above, the Facility Termination Date shall occur automatically upon the occurrence of such event. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Transferred Assets and Seller Collateral provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Samples: Secondary Purchase Agreement (Hayes Lemmerz International Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) or (iii) of this subSection (a)) and such failure shall remain unremedied for five Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement (unless such payment became due and payable as a result of a deemed Collection under Section 2.04(e), in which case, such payment is not made within three Business Days after the Seller becomes actually aware of the deemed Collection having occurred) or (iii) shall fail to deliver any Seller Report within one Business Day from the date when required; or
(b) The Seller shall fail to make any payment required under Section 2.04(e) for a period of three Business Days; or
(c) Any representation or warranty made or deemed made by the Seller, the Collection Agent, EIS, EDS or EPC (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by the Seller, the Collection Agent, EIS, EDS or EPC pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered (unless (i) the breach of such representation or warranty arises under the first sentence of Section 4.01(h) and relates solely to specific Pool Receivables in the aggregate amount of not more than $5,000,000 as to which the Investors or the Banks, as the case may be, have not acquired a valid and perfected first priority interest and (ii) the Seller either (A) cures such breach of representation or warranty or (B) pays a deemed Collection on account of such Pool Receivables pursuant to Section 2.04(e)(ii), in each case within two Business Days; or
(d) The Seller, EPC, the Originator or EDS shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Seller by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Agent; or
(e) The Program AgentSeller, EIS, EDS or EPC shall fail to pay any principal of or premium or interest on behalf any of its Debt which, in the case of each of EIS, EDS and EPC, is outstanding in a principal amount of at least $50,000,000 in the aggregate when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any purchase or any reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the Secured Partiespertinent Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto, or the security interest created pursuant to Section 2.11 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts collateral security referred to in that section (unless (i) such defect in creation, perfection or priority relates solely to specific Pool Receivables in the aggregate amount of not more than $5,000,000 and Collections with respect thereto (ii) the Seller either (A) cures such defect or any other Collateral;
(fB) An Event pays a deemed Collection on account of Bankruptcy shall occur with respect such Pool Receivables pursuant to any Transaction Party;Section 2.04(e)(ii), in each case within two Business Days; or
(g) A Servicer Default The Seller, the Collection Agent, EIS, EDS or EPC 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, the Collection Agent, EIS, EDS or EPC 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, 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 Seller, the Collection Agent, EIS, EDS or EPC shall take any corporate or limited liability company action to authorize any of the actions set forth above in this subsection (g); or
(h) As of the last day of any calendar month, either (i) the average of the Default Ratio for such month and the two immediately preceding months shall exceed 14% or (ii) the average of the Delinquency Ratio for such month and the two immediately preceding months shall exceed 7% or (iii) the Loss-to-Liquidation Ratio shall exceed 1% or (iv) the average of the Dilution Ratio for such month and the two preceding months shall exceed 5%; or
(i) The sum of the Receivable Interests shall be greater than the Maximum Purchaser Interest for more than one Business Day; or
(j) There shall have occurred any event which is reasonably likely to materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement; or
(k) An “Event of Termination” or “Facility Termination Date” shall occur under the Originator Purchase Agreement, or the Originator Purchase Agreement shall cease to be in full force and effect; or
(l) A default shall occur under the EDS Contribution Agreement, or the EDS Contribution Agreement shall cease to be in full force and effect; or
(m) The Debt Rating of EDS is below BBB- by S&P or below Baa3 by Mxxxx’x, or is withdrawn or suspended by S&P or Mxxxx’x; or,
(n) All of the outstanding membership interests of the Seller shall cease to be owned, directly or indirectly, by EDS, or all of the outstanding capital stock or membership interests of EIS or EPC shall cease to be owned, directly or indirectly, by EDS; or
(o) One or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (except to the extent covered by insurance as to which the insurer has acknowledged such coverage in writing) shall be rendered against (i) EDS or any of its U.S. Subsidiaries or any combination thereof or (ii) the Collection Agent or any of its U.S. Subsidiaries or a combination thereof, and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or any action shall be taken by a judgment creditor to attach or levy upon any assets (other than Lock-Box Accounts) of EDS or the Collection Agent or any of their respective U.S. Subsidiaries to enforce any such judgment, which action is not stayed or dismissed within five Business Days after its commencement; or
(i) EDS shall fail to make any payment required by either Undertaking which (x) if such failure relates to the Collection Agent’s obligation to remit or deposit funds, shall continue for one Business Day after payment is due, or (y) if such failure relates to any other payment obligation, shall continue for five Business Days after payment is due, or (ii) EDS shall fail to perform or observe any other term, covenant or agreement contained in either Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Seller by the Agent, or (iii) either Undertaking shall cease to be in full force and effect; then, and in any such event, any or all of the following actions may be taken by notice to the Seller: (x) the Agent may declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), (y) the Agent may declare the Commitment Termination Date to have occurred (in which case the Commitment Termination Date shall be deemed to have occurred), and (z) without limiting any right under this Agreement to replace the Collection Agent, the Agent may designate another Person to succeed EIS as the Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date and the Commitment Termination Date shall occur, EIS (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Agent or its designee shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Investors, the Banks and the Agent shall have, in addition to the rights and remedies which they 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 1 contract
Samples: Receivables Purchase Agreement (Electronic Data Systems Corp /De/)
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENTS OF TERMINATION") shall occuroccur and be continuing:
(ai) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration Seller or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer (if WORLDCOM or any Performance Guarantor of its Affiliates) shall fail to make any payment or deposit required of Yield to be made by it hereunder within one Business Day after such payment or deposit is due, (other than as described in clause ii) the Seller or the Servicer (aif WORLDCOM or any of its Affiliates) above) or under shall fail to make any other Facility Document when due and payment or deposit to be made by it hereunder on the date such failure shall continue unremedied for three payment or deposit is due, or (3iii) Business Days;
except as otherwise provided in subsection (c) The Borrower, the Originatorof this SECTION 7.01, the Servicer (if WORLDCOM or any Performance Guarantor of its Affiliates) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document to which it is a party on its part to be performed or observed and any such failure shall remain unremedied continue for five 10 days after the earlier of (5A) Business Days after any Affected Party gives the date on which written notice thereof shall have been given to a Responsible the Servicer by the Administrative Agent and (B) the date on which any Senior Financial Officer of the Borrower, the Originator, the Servicer shall have knowledge of such failure to perform or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;observe; or
(db) Any representation or warranty made or deemed to be made by the Borrower, the OriginatorSeller, the Servicer (if WORLDCOM or any Performance Guarantor of its Affiliates), WORLDCOM (other than in its capacity as Servicer) or any Originator (or any of their respective officers) under or in connection with this Agreement, the Parent Undertaking or the Receivables Contribution and Sale Agreement or any other Facility Document (including in any Monthly Report, any Monthly Serviced Portfolio Weekly Report, Daily Report or any Borrowing Base Certificateother written report, certificate or information delivered by or on behalf of the Seller, such Servicer, WORLDCOM or any Borrowing Request Originator (or other information any of their respective officers) pursuant hereto or report delivered pursuant hereto) thereto, shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;; or
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Servicer (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in under this Agreement (other than as referred to in clause (ii) or any other Facility Document on its part to be performed or observed (iii) of this subsection (a)) and any such failure shall remain unremedied for five three Business Days; provided, however, that no grace period shall be available in respect of any failure by the appropriate party to perform or observe any term or covenant set forth in Section 5.03, Section 5.04(d) or Section 6.02, (5ii) shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall remain unremedied for one Business Day; provided, however, that no such grace period shall be available if Xxxxx, Inc. is not then rated at least the Relevant Grade or (iii) shall fail to perform the covenant listed in Section 5.04(e) and such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Servicer by the Administrative Agent; or
(b) The Seller shall fail to make any payment required under Section 2.04(c) or within three (3) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;same becomes due; or
(dc) Any representation or warranty made or deemed to be made by the BorrowerSeller, the Originator, Originators or the Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller or the Servicer pursuant hereto) to this Agreement or any other Transaction Document shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;delivered and shall remain unremedied for 30 days after written notice thereof shall have been given to the Seller, any Originator or the Servicer by the Administrative Agent; or
(ed) The Program Seller or any Originator (i) shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement on its part (other than as referred to in clause (ii) of this subsection (d)) to be performed or observed and any such failure remains unremedied for 10 days or (ii) shall fail to perform the covenant listed in Section 5.01(j)(v) and such failure remains unremedied for 30 days after written notice thereof has been given to the Seller or any Originator by the Administrative Agent; or
(i) The Seller or any Originator, or any Significant Subsidiary (as such term is defined in the Senior Credit Agreement) (collectively, with the Seller and any Originator, the “Specified Companies” and each a “Specified Company”) shall fail to make any payment in respect of any one or more issues of Debt or Contingent Obligation having an aggregate principal of more than the Dollar Equivalent amount of U.S.$20,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Debt or Contingent Obligation was created or by which it is governed or (ii) any Specified Company shall fail to perform or observe any term, condition or covenant (including, without limitation, failure by Xxxxx, Inc. to perform or observe any financial covenant under the Senior Credit Agreement, where such failure is continuing and has not been remedied or waived in accordance with the terms of the Senior Credit Agreement) or any other event shall occur or condition exist, under any agreement or instrument relating to any Debt or Contingent Obligation, if the effect of such failure, event or condition is to cause or to permit the holder or holders of such Debt or beneficiary or beneficiaries of such Debt or Contingent Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause (with or without notice or passage of time or both), such Debt declared to be due and payable prior to its stated maturity or to require any of Xxxxx Inc. or any of its Subsidiaries to redeem or purchase, or offer to redeem or purchase, all or any portion of such Debt, or any such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment or redemption) prior to the Secured Partiesstated maturity thereof or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded; provided, however, that the aggregate amount of all such Debt or Contingent Obligations for all Specified Companies so affected and cash collateral so required shall be in a Dollar Equivalent amount of U.S.$20,000,000 or more; or
(f) Any purchase pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to have create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in the Pool Receivables and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.11 shall for any reason cease to be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect collateral security referred to any Transaction Party;in that section; or
(g) Any Specified Company 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 Specified Company 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, 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 Specified Company shall take any corporate action to authorize or consent to any of the actions set forth above in this subsection (g); or
(h) As of the last day of any Monthly Period either (i) the Default Ratio Current Month shall exceed 5.75% or (ii) the Default Ratio Rolling Average shall exceed 5.25%; or
(i) As of the last day of any Monthly Period either (i) the Delinquency Ratio Current Month shall exceed 15% or (ii) the Delinquency Ratio Rolling Average shall exceed 12.50%; or
(j) As of the last day of any Monthly Period the Dilution Ratio Current Month shall exceed 2%; or
(k) As of the last day of any Monthly Period the Loss Horizon Ratio shall exceed 2.5; or
(l) Any provision of any Transaction Document for any reason (i) ceases to be valid and binding upon the Seller, the Servicer, any Originator or any Depositary, or (ii) the Seller, the Servicer or any Originator shall seek to repudiate, revoke or cancel any Transaction Document to which it is a party for any reason, or (iii) any Depositary shall seek to repudiate, revoke or cancel any Account Control Agreement by reason of any alleged breach by the Seller or any Originator of any Account Control Agreement to which it is a party; or
(m) A Servicer Default shall occur and be continuing; or
(n) The Net Receivables Pool Balance shall on any Business Day be less than the sum of the aggregate outstanding Capital plus the Discount Protection Amount on all Receivable Interests and (i) if Xxxxx, Inc. is rated at least the Relevant Grade, such failure shall not be remedied within three Business Days or (ii) if Xxxxx, Inc. is not rated at least the Relevant Grade, such failure shall not be remedied within one Business Day; or
(o) An “Event of Termination” or “Facility Termination Date” shall occur under the Sale and Contribution Agreement, or the Sale and Contribution Agreement shall cease to be in full force and effect; or
(p) A Change of Control shall occur;, or
(q) Xxxxx, Inc.’s long term senior secured debt securities shall be rated less than B+ by S&P or B1 by Xxxxx’x (a “Ratings Downgrade”) and 30 days have elapsed from the date of such Ratings Downgrade or, if Xxxxx, Inc. does not have long term senior secured debt ratings from both S&P and Moody’s, Greif, Inc. is judged by the Administrative Agent, in its sole discretion, to be of credit quality less than the equivalent (with respect to each missing rating) of B+ by S&P and Bl by Xxxxx’x and 30 days have elapsed from the date such judgment is delivered by the Administrative Agent to the Seller, then, and in any such event the Investor or the Administrative Agent may by written notice to the Seller declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur, Xxxxx, Inc. (if it is then serving as the Servicer) shall cease to be the Servicer, and the Administrative Agent or its designee shall become the Servicer. Upon any such declaration or designation or upon such automatic termination, the Investors and the Administrative Agent shall have, in addition to the rights and remedies which they 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 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Seller shall fail to make (i) any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to required under Section 2.05(b) or otherwise) and without giving effect to availability of funds2.04(e) or (yii) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit of Capital required to be made by it hereunder under this Agreement or (other than as described iii) any payment of Yield or Fees required to be made by it under this Agreement and any such failure referred to in this clause (aiii) aboveshall not be remedied within one (1) Business Day of the due date; or
(b) Any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and either (i) immediately following the removal of such Receivables from the Net Receivables Pool Balance the Percentage Factor is not greater than the Maximum Percentage Factor and the Aggregate Capital does not exceed the Purchase Limit or (ii) the Seller shall have made any required deemed Collection payment pursuant to Section 2.04(e) with respect to such Receivables) made or deemed made by the Seller or any Originator (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document or any information or report delivered by the Seller or any Originator pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when due and such failure shall continue unremedied for three (3) Business Days;made or deemed made or delivered; or
(c) The Borrower, the Originator, the Servicer Seller or any Performance Guarantor Originator shall fail to perform or observe (i) any term, covenant or agreement contained in this Agreement (other than as referred to in Section 7.01(a) or clauses (ii) and (iii) of this Section 7.01(c)) or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for ten (10) days after written notice thereof shall have been given to the Seller by the Agent, (ii) any covenant applicable to it contained in Sections 5.01(d), 5.01(g), 5.01(h), 5.01(i), 5.01(o) (first sentence only), 5.01(p), 5.01(q), 5.01(r), 5.01(s), 5.01(t) or 5.01(u) or (iii) any covenant or agreement contained in Section 5.02 on its part to be performed or observed and any such failure referred to in this clause (iii) shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Days; or
(d) Any representation The Seller or warranty made any Originator shall fail to pay any principal of or deemed to be made by premium or interest on any of its Debt which, in the Borrowercase of the Seller, is outstanding in any principal amount, and in the case of an Originator, is outstanding in a principal amount of at least $40,000,000 in the Servicer aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or any Performance Guarantor under otherwise), and such failure shall continue after the applicable notice, cure or grace period, if any, specified in connection with this Agreement the agreement or instrument relating to such Debt; or any other Facility Document (including event shall occur or condition shall exist under any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request agreement or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply instrument relating to any such representation Debt and shall continue after the applicable notice, cure or warranty that grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is qualified to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a materiality standard by its terms) when made regularly scheduled required prepayment), redeemed, purchased or deemed made defeased, or delivered;an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof (other than with respect to “Convertible Senior Debentures” as defined in the Credit Agreement); or
(e) The Program AgentAny Servicer Default; or
(f) This Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, on behalf or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the Secured Parties, pertinent Receivable Interest in each applicable Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.11 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;; or
(g) A Servicer Default The Seller or any Originator 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 or any Originator 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 sixty (60) 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 the Seller or any Originator shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(h) As of the last day of any calendar month, either (i) the 3-month rolling average Default Ratio shall exceed 2.0%, (ii) the 3-month rolling average Delinquency Ratio shall exceed 3.0%, (iii) the 3-month rolling average Dilution Ratio shall exceed 8.0%, or (iv) the 3-month rolling average DSO shall exceed 65 days; or
(i) The Percentage Factor shall on any Business Day be greater than the Maximum Percentage as of such date unless the Percentage Factor shall be reduced to an amount less than or equal to the Maximum Percentage Factor within two Business Days; or
(j) In the Agent’s reasonable judgment, there shall have occurred any event which would be reasonably likely to materially and adversely affect the collectibility of the Receivables or the ability of the Seller or any Originator to collect Receivables or otherwise perform its respective obligations under this Agreement and the other Transaction Documents; or
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event of Termination”herein called "Termination Events") shall occurhave occurred and be continuing:
(a) The Borrower the Company shall fail to make deliver any payment Daily Report or any Settlement Statement conforming in all material respects to the requirements of subsection 12.5 and such failure shall continue for two consecutive Business Days; provided, that if a Force Majeure Delay shall -------- have occurred with respect to any Servicer or the Master Servicer, the failure of the Company to deliver any Daily Report or Settlement Statement, shall not, in either case, constitute a Termination Event unless such failure continues for longer than the lesser of (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) ten consecutive Business Days and without giving effect to availability of funds) or (y) the length of Interest on the Loans or Liquidity Fees when duesuch Force Majeure Delay;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Company shall fail to make pay, or the Participants or the Administrative Agent shall not be paid, any amount (i) required to be paid hereunder in respect of reduction of the Net Investment when required to be paid or (ii) required to be paid in respect of Purchase Discount Amounts, any other amounts payable to the Participants or Administrative Agent or any payment reflected in any Daily Report or deposit Settlement Statement as being required to be made by the Company, in any case, with respect to this clause (ii), within five Business Days after the date when required to be paid;
(c) default shall be made in the due observance or performance by the Company of any covenant, condition or agreement contained in subsection 7.7 or Article VIII;
(d) the Company shall fail to observe or perform any covenant or agreement applicable to it hereunder contained herein (other than as described specified in clause paragraph (a) above), (b) or (c) of this Article IX); provided, that no such -------- failure shall constitute a Termination Event under any other Facility Document when due and this paragraph (d) unless such failure shall continue unremedied for three (3) Business Daysa period of 30 consecutive days after notice thereof from the Administrative Agent or the Required Participants to the Company;
(ce) The Borrowerany representation, warranty, certification or statement made or deemed made by the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained Company in this Agreement or in any Settlement Statement or other Facility Document on its part certificate, financial statement or other document delivered pursuant to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect misleading in any material respect on or as of the date made or deemed made; provided, -------- that a Termination Event shall not be deemed to have occurred under this paragraph (except e) based upon a breach of a representation or warranty contained in subsection 5.2 if the Company shall have complied with the provisions of subsection 5.3(b) in respect thereof;
(i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (A) liquidation, reorganization or other relief in respect of the Company or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or for a substantial part of its 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; (ii) the Company shall (A) 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, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (f)(i) of this subsection, (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or for a substantial part of its assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors or (F) take any action for the purpose of effecting any of the fore going; or (iii) the Company shall become unable, admit in writing or fail generally to pay its debts as they become due;
(g) any event or condition occurs that results in any Material Indebtedness of WMI or any Subsidiary of WMI or the materiality standard in Credit Facility becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, but subject to the expiration of any stated grace period) the holder or holders of any Material Indebtedness or the Credit Facility or any trustee or agent on its or their behalf to cause any Material Indebtedness or the Credit Facility to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, or to terminate any commitment associated therewith, prior to its scheduled maturity or termination date; provided, that this clause (dg) shall not -------- apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or deliveredIndebtedness;
(ei) The Program Agentan ERISA Event shall have occurred that, on behalf in the opinion of the Secured PartiesRequired Participants, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or (ii) a notice of Lien shall have been filed by the PBGC against the Company 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 unless there shall have been delivered to the Administrative Agent proof of release of such Lien;
(i) a Federal tax notice of Lien, in an amount equal to or greater than $1,000,000, shall have been filed against the Company unless the Company shall have delivered to the Administrative Agent proof of release of such Lien or against the Master Servicer unless the Master Servicer shall have set aside on its books adequate reserves or there shall have been delivered to the Administrative Agent proof of release of such Lien;
(j) there shall have occurred a Change in Control;
(k) (i) one or more judgments for the payment of money in an aggregate amount in excess of $100,000 shall be rendered against the Company and the same shall remain undischarged for a period of 30 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 the Company to enforce any such judgment; or (ii) one or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against WMI or any Subsidiary of WMI or any combination thereof and the same shall remain undischarged for a period of 30 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 WMI or any Subsidiary of WMI to enforce any such judgment; or
(l) any material provision of the Transaction Documents shall not be in full force and effect, enforceable in accordance with its terms, or the Company, a Seller or the Master Servicer, or any Affiliate of any of the foregoing, shall so assert in writing;
(m) the Participating Interest shall for any reason cease to have be a valid and perfected first priority security undivided ownership interest in the Pledged Contracts and Collections with respect thereto or any other CollateralReceivables;
(fn) An Event the Company shall have become an "investment company" under the Investment Company Act of Bankruptcy 1940;
(o) one or more Purchase Termination Events shall occur have occurred and be continuing or an Early Termination shall have occurred, in each case with respect to any Transaction PartySellers which in the aggregate generated more than 10% of the aggregate revenues of all Sellers during the immediately preceding Settlement Period;
(gp) A the Company shall fail to pay the Purchase Price for any newly created Receivable when due pursuant to subsection 2.3 of the Receivables Sale Agreement (including, without limitation, by application of any restrictions in such subsection); provided that no such failure shall -------- constitute a Termination Event under this paragraph (p) unless such failure shall continue for five consecutive Business Days;
(q) a Servicer Event of Default shall occur;have occurred and be continuing; or
(r) the Net Investment exceeds the Maximum Transfer Amount on the second Business Day following any Settlement Date, after giving effect to the calculation of the Maximum Invested Percentage on such Settlement Date, and after application of Collections and all other payments and amounts to reduce the Net Investment to and including such second Business Day (except to the extent Excess Application Amounts in respect of such excess are being held in a cash collateral account pursuant to subsection 2.12(c)); then, (x) if such event is (I) a Termination Event described in paragraph (f) (other than clause (iii) thereof) above or (II) a Termination Event described in paragraph (q) above resulting from a Purchase Termination Event described in paragraph (e) of subsection 12.11, automatically the Commitments and the Commitment Period shall thereupon terminate without notice of any kind, which is hereby waived by the Company and (y) if such event is any other Termination Event, so long as such Termination Event shall be continuing, the Administrative Agent may, with the consent of the Required Participants, and shall, upon the request of the Required Participants, by notice to the Company terminate the Commitments and the Commitment Period. In addition, in the event of (i) the occurrence of a Termination Event described in paragraph (f) above or (ii) the Net Investment has not been reduced to zero within six months after the termination of the Commitments and the Commitment Period, the Administrative Agent shall proceed to sell, dispose of, or otherwise liquidate the Receivable and the Related Property in a commercially reasonable manner and on commercially reasonable terms, which shall include the solicitation of competitive bids and Administrative Agent shall proceed to consummate the sale, liquidation or disposition of the Receivables and the Related Property as provided above with the highest bidder for the Receivables and the Related Property. The Company or any of its Affiliates shall be permitted to bid for the Receivables and the Related Property. In addition, the Company or any of its Affiliates shall have the right to match any bid by a third person and be granted the right to purchase the Receivables and Related Property at such matched bid price. All reasonable costs and expenses incurred by the Administrative Agent in such sale shall be reimburse to the Administrative Agent as provided herein. The proceeds from the sale, disposition or liquidation of the Receivables shall be treated as Collections on the Receivables and such proceeds shall be applied in accordance with subsection 2.7.
Appears in 1 contract
Samples: Receivables Transfer and Servicing Agreement (Waste Management Inc /De/)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make (i) the Seller, any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any other Facility Transaction Document on its part to be performed or observed and (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall remain continue for thirty (30) days after the earlier to occur of (A) written notice thereof having been given to the Seller, any Originator, the Performance Guarantor or the Servicer by the Administrative Agent or any Purchaser or (B) actual knowledge thereof by the Seller, any Originator, the Performance Guarantor or the Servicer of such failure; (ii) the Seller, any Originator, the Performance Guarantor or the Servicer shall fail to make when due (x) any payment or deposit to be made by it under this Agreement or any other Transaction Document (including, for the avoidance of doubt, any remittance required to be made from a Collection Account or Lock-Box to a Blocked Account pursuant to Section 8.01(h) or 8.02(f)) and such failure shall continue unremedied for five two (52) Business Days after any Affected Party gives notice thereof or (iii) CSC shall resign as Servicer, and no successor Servicer reasonably satisfactory to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofAdministrative Agent shall have been appointed;
(db) Any any representation or warranty made or deemed to be made by the BorrowerSeller, the any Originator, the Performance Guarantor or the Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, any Originator, the Performance Guarantor or the Servicer pursuant hereto) to this Agreement or any other Transaction Document (unless such representation or warranty relates solely to one or more specific Pool Receivables and Seller makes a Deemed Collection payment with respect to such Pool Receivable in accordance with Section 4.01(d)), shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;
(e) The Program Agent; provided, on behalf of the Secured Partieshowever, that such circumstance shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An not constitute an Event of Bankruptcy shall occur with respect Termination pursuant to any Transaction Partythis clause (b) if, solely to the extent capable of cure, such breach is cured promptly (but not later than fifteen (15) days);
(g) A Servicer Default shall occur;
Appears in 1 contract
Samples: Receivables Purchase Agreement (Computer Sciences Corp)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Any Servicer (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) or (iii) of this subsection (a)) and such failure shall remain unremedied for five Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement or (iii) shall fail to deliver any Seller Report when required and such failure shall remain unremedied for one Business Day; or
(b) Any Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure remains unremedied for one Business Day after such Seller obtains actual knowledge thereof or receives written notice from the Purchaser or the Purchaser’s assignee; or
(c) Any representation or warranty made or deemed made by any Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by any Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered (unless either (i) such representation or warranty relates solely to one or more specific Transferred Receivables and such Seller pays a deemed Collection or repurchases such Transferred Receivables in accordance with Section 2.04(b) within two Business Days following the discovery of such breach of representation or warranty, or (ii) the breach of such representation or warranty is capable of being cured and is in fact cured (without any adverse impact on the Purchaser or its assignees or the collectibility of the Transferred Receivables) within five Business Days after the first date on which such Seller obtains actual knowledge or receives written notice of such breach from the Purchaser or its assignees); or
(d) Any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to such Seller by the Purchaser or its assignees; or
(e) Any Seller (i) fails to pay at maturity or, in the event a Responsible Officer period of grace is provided, within any such applicable period of grace, any payment with respect to Indebtedness for Borrowed Money or (ii) is in default under or fails to observe or perform any term, covenant or agreement contained in any agreement by which it is bound evidencing or securing Indebtedness for Borrowed Money and any grace period provided in such agreement to remedy such default or failure has expired if the effect of such default or failure is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness for Borrowed Money; provided, that there shall only be an Event of Termination under this Section 7.0 l(e) if the aggregate amount of Indebtedness for Borrowed Money which is not so paid and/or with respect to which such default or failure to observe or perform has occurred, exceeds U.S.$5,000,000 ( or the equivalent amount in other currencies) and provided further that no Event of Termination shall be deemed to have occurred under this Section 7.01(e) if the failure to pay or perform under the relevant agreement is waived, rescinded or annulled in writing by the relevant creditor(s); or
(f) Any Purchase of Receivables hereunder and the Collections with respect thereto shall for any reason cease to constitute valid and perfected ownership of such Receivables and Collections free and clear of any Adverse Claim (unless such defect in ownership relates solely to one or more specific Receivables and the Seller thereof either (i) cures such defect or (ii) pays a deemed Collection on account of such Receivables pursuant to Section 2.04, in each case within two Business Days after the first date on which such Seller obtains actual knowledge of such defect); or
(g) Any Seller 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 any Seller 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 arrangement of debts, 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 Borroweractions sought in such proceeding (including, without limitation, the Originatorentry of an order for relief against, or the Servicer appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or any Performance Guarantorreceiver, trustee, custodian, or other similar official for any Seller or for any substantial part of its property shall be appointed, whether under private right or pursuant to any such proceeding; or any Seller shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) An “Event of Termination” shall have occurred under the Sale Agreement; or
(i) There shall have occurred any event which is reasonably expected to materially adversely affect the collectibility of the Transferred Receivables generally or the ability of any Seller to collect Transferred Receivables or otherwise perform its obligations under this Agreement (it being understood and agreed that (i) a downgrade in the Debt Rating of the Parent, alone and in and of itself, such shall not constitute a material adverse effect on the ability of the Parent to perform its obligations under this Agreement and (ii) any deterioration in the credit quality of the Obligors is not an event which may form the basis of an Event of Termination under this subsection (i)); or
(i) the Parent or Bombardier Motor shall fail to make any payment required by its Undertaking when due, or (ii) the Parent or Bombardier Motor shall fail to perform or observe any other term, covenant or agreement contained in its Undertaking and such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Parent or Bombardier Motor, as applicable, by the Purchaser or its designee, or (iii) either Undertaking shall be terminated, revoked or declared void or invalid or in any other manner ceases to exist; then, and in any such event, the Purchaser may, by notice to the Sellers, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) designate another Person or Persons to succeed any or all Sellers as Servicer and Parent Servicer; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the Borrowergiving of notice) described in paragraph (g) of this Section 7.01, the OriginatorFacility Termination Date shall occur, the Servicer or any Performance Guarantor, each Seller (if it is then serving as applicable, otherwise obtains knowledge thereof;
(da Servicer) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have be a valid Servicer, and perfected first priority security interest the Purchaser (or its assigns or designees) shall become each Servicer and the Parent Servicer. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the Pledged Contracts rights and Collections with respect thereto or any remedies under this Agreement, all other Collateral;
(f) An Event of Bankruptcy shall occur rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC, the PPSA and under other applicable law, which rights and remedies shall occur;be cumulative.
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Events of Termination. If any of the Events of Termination set forth in Exhibit V hereto shall occur and be continuing, the Required Purchaser Agents (or, in the case of Events of Termination described in paragraphs (b), (f) and (i) of Exhibit V, the Administrative Agent or the Required Purchaser Agents) may, by notice to the Seller, take either or both of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment actions: (x) of principal declare the Facility Termination Date and the Commitment Termination Date to have occurred (in respect of which case the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant Facility Termination Date and the Commitment Termination Date shall be deemed to Section 2.05(b) or otherwisehave occurred) and without giving effect to availability of funds) or (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed the then current Collection Agent as the Collection Agent; provided that, automatically upon the occurrence of Interest on any event (without any requirement for the Loans passage of time or Liquidity Fees when due;the giving of notice) described in paragraph (g) of Exhibit V, the Facility Termination Date and the Commitment Termination Date shall occur; provided, further, that if an Event of Termination described in paragraph (n) of Exhibit V shall occur (or if the Seller or any Purchaser Agent believes that any such Event of Termination is reasonably likely to occur) and the Seller cannot otherwise remedy the circumstance which gives rise to the Event of Termination in a manner reasonably satisfactory to the Seller, the Administrative Agent and the Purchaser Agents, then the Administrative Agent and the Purchaser Agents may, in their sole and absolute discretion, negotiate in good faith to restructure the terms of the transactions contemplated by this Agreement in such a manner as may be required so that, in the reasonable determination of the Seller, the Administrative Agent and each of the Purchaser Agents, the transactions contemplated by this Agreement, as restructured, would not result in an Event of Termination described in paragraph (n) of Exhibit V. Upon any such declaration or designation
(bi) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be statement made by the Borrower, the Originator, the Servicer or any Performance Guarantor Collection Agent under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) the Transaction Documents that shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or deliveredmade;
(eii) The Program Agentthe failure by the Collection Agent or the Originator to comply with any applicable law, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto rule or any other Collateral;
(f) An Event of Bankruptcy shall occur regulation with respect to any Transaction PartyPool Receivable or Contract, including payment of all unpaid sales, excise or other taxes when due;
(giii) A Servicer Default shall occurany failure of the Collection Agent to perform its duties or obligations in accordance with the provisions of this Agreement;
(iv) the commingling of Collections of Pool Receivables at any time by the Collection Agent with other funds;
(v) any action or omission by the Collection Agent not in compliance with its Credit and Collection Policy that has the effect of reducing or impairing the rights of the Investors or the Banks with respect to any Pool Receivable or the value of any Pool Receivable;
(vi) any claim brought by any Person other than a Special Indemnified Party arising from any activity by the Collection Agent or its Affiliates in servicing, administering or collecting any Pool Receivable; or
(vii) any dispute, claim, offset or defense of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool as a result of the collection activities with respect to such Receivable by the Collection Agent.
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Events of Termination. If (a) Notwithstanding anything in this Agreement to the contrary, the consummation of the transactions contemplated by this Agreement may be terminated at any time prior to completion of the First Closing, as follows:
(i) by Seller if there has been a material incorrectness in or a material default or breach by Purchaser with respect to Purchaser’s representations and warranties in Article 5 of this Agreement, or the due and timely performance of any of the following events material covenants of Purchaser during the first Interim Period (eachand for all such purposes, an “Event any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of Termination”a material default or breach of a covenant during the First Interim Period, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) shall occur:day period) within thirty (30) Business Days after receipt by Purchaser of written notice from Seller specifying in reasonable detail the nature of such default or breach; or if any condition in Section 3.01(a) has not been satisfied as of the First Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Seller or Parent to comply with its obligations under this Agreement) and Seller has not waived such condition on or before the First Closing Date;
(aii) The Borrower shall fail by Purchaser if there has been a Material Adverse Change or a material incorrectness in or a material default or breach by Seller or Parent with respect to make any payment (x) First Closing Representation and Warranty, or the due and timely performance of principal in respect any of the Loans when due material First Interim Period Covenants (whether and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a material First Interim Period Covenant, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Seller of written notice from Purchaser specifying in reasonable detail the nature of such default or breach or if any condition in Section 3.02(a) has not been satisfied as of the First Effective Time or if satisfaction of such a condition is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement) and Purchaser has not waived such condition on or before the First Closing Date;
(iii) by Seller, on the one hand or Purchaser, on the other hand, at stated maturityany time after August 15, upon acceleration 2008, if the First Closing has not occurred and the party seeking to terminate this Agreement is not in material breach or default of any provision of this Agreement to be performed or complied with by it during the First Interim Period or at mandatory prepayment the First Closing;
(pursuant iv) by Seller or Purchaser immediately upon receipt of notice that any approval of a Governmental Entity that is required for the consummation of the transactions contemplated hereby has been denied by a final, non-appealable order, or if Purchaser has been requested to Section 2.05(bwithdraw any regulatory application that is required for the consummation of the transactions contemplated hereby; or
(v) or otherwise) by written agreement of Seller and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;Purchaser.
(b) The BorrowerNotwithstanding anything in this Agreement to the contrary, the Originator, consummation of the Servicer or any Performance Guarantor shall fail to make any payment or deposit required transactions contemplated by this Agreement to be made completed at or prior to the Second Closing may be terminated at any time prior to completion of the Second Closing:
(i) by it hereunder Seller if there has been a material incorrectness in or a material default or breach by Purchaser with respect to Purchaser’s representations and warranties in Article 5 of this Agreement, or the due and timely performance of any of the material covenants of Purchaser during the First Interim Period (and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a covenant during the First Interim Period, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Purchaser of written notice from Seller specifying in reasonable detail the nature of such default or breach; or if any conditions in Section 3.01(b) has not been satisfied as of the First Closing Date or if satisfaction of such a condition is or becomes impossible (other than as described through the failure of Seller or Parent to comply with its obligations under this Agreement) and Seller has not waived such condition on or before the First Closing Date;
(ii) by Purchaser if there has been a Material Adverse Change or a material incorrectness in clause (a) above) or under a material default or breach by Seller or Parent with respect to any other Facility Document when Second Closing Representation and Warranty, or the due and timely performance of any of the material Second Interim Period Covenants (and for all such failure purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall continue unremedied for three be disregarded), and in the case of a material default or breach of a material Second Interim Period Covenant, such material default or material breach shall not have been cured (3or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business DaysDays after receipt by Seller of written notice from Purchaser specifying in reasonable detail the nature of such default or breach or if any condition in Section 3.02(b) has not been satisfied as of the Second Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement) and Purchaser has not waived such condition on or before the Second Closing Date;
(iii) by Seller, on the one hand or Purchaser, on the other hand, at any time after October 31, 2008, if the Second Closing has not occurred and the party seeking to terminate this Agreement is not in material breach or default of any provision of this Agreement to be performed or complied with by it at or prior to the Second Closing; or
(iv) by written agreement of Seller and Purchaser.
(c) The BorrowerNotwithstanding any other provision of this Agreement, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to may not be performed or observed and any such failure shall remain unremedied for five (5) Business Days terminated after any Affected Party gives notice thereof to a Responsible Officer completion of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;First Closing.
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Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration Seller or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Purchaser shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business DaysDays after Seller or Purchaser, as the case may be, has knowledge or has received notice thereof;
(cb) The Borrower, the Originator, the Servicer Seller or any Performance Guarantor Purchaser shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofAgreement;
(dc) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer Seller or any Performance Guarantor Purchaser under or in connection with this Agreement Agreement, or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) hereto shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or deliveredto be made;
(ed) The Program Agent, on behalf of the Secured Parties, Purchaser shall cease to have a valid and perfected first priority security ownership interest in each Student Loan transferred hereunder and the Pledged Contracts Related Assets and Collections with respect thereto for the benefit of the Purchaser;
(i) Seller 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 Seller seeking to adjudicate it as 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 Collateralsimilar official for it or for any substantial part of its property which proceeding has not been dismissed or stayed within thirty (30) days; or Seller shall take any corporate action to authorize any of the actions set forth above in this paragraph (e)(i);
(ii) Purchaser 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 Purchaser seeking to adjudicate it as 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 any substantial part of its property which proceeding has not been dismissed or stayed within thirty (30) days; or (ii) Purchaser shall take any corporate action to authorize any of the actions set forth in above in this paragraph (e)(ii);
(f) An Event of Bankruptcy There shall occur with respect to have occurred any Transaction Partyevent or circumstance that has a Material Adverse Effect on the Seller, the Seller Trustee or the Purchaser;
(g) A Servicer Default Seller or Purchaser shall occur;send notice to the other party that an Event of Termination has occurred pursuant to Section 2.3; and
(h) Purchaser shall have terminated the Servicing Agreement pursuant to Section 10.b. thereof; then, in any such event, the Purchaser or Seller, as applicable, may, by notice to Seller or Purchaser, as applicable, declare the “Termination Date” to have occurred, except that, in the case of any event described in subsection (e)(i) or (ii) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event, and in the case of an event described in subsection (h), the Termination Date shall be deemed to have occurred at the sole discretion of the Purchaser, as evidenced in writing. Upon any such declaration or automatic occurrence, the Purchaser or Seller, as applicable, shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. Upon the occurrence of the Termination Date, all amounts owing hereunder shall be immediately due and payable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Collegiate Funding Services Inc)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower (i) the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall continue for thirty (30) days after the earlier of (x) written notice to the Seller, the Pledgor, any Originator, the Performance Guarantor, or the Servicer by the Administrative Agent or any Purchaser, and (y) actual knowledge of the Seller, the Pledgor, any Originator, the Performance Guarantor, or the Servicer, (ii) the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) under this Agreement or under any other Facility Transaction Document when due and such failure shall continue unremedied for three (3) Business DaysDays or (iii) Xxxxxx shall resign as Servicer, and if the Parent or an Affiliate thereof has not been appointed as Servicer hereunder, no successor Servicer reasonably satisfactory to the Administrative Agent shall have been appointed;
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any written representation or warranty made or deemed to be made by the BorrowerSeller, the Pledgor, any Originator, the Performance Guarantor or the Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer pursuant hereto) to this Agreement or any other Transaction Document, shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered, provided, however, any breach of any representation or warranty set forth in Section 7.01(m), 7.01(u), 7.02(i) or 7.02(l) shall not constitute an Event of Termination if a Deemed Collection payment is timely and fully made in connection therewith in accordance with Section 4.01(d);
(c) the Seller or the Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days after written notice of such failure has been given to the Seller or the Servicer;
(d) 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 Pool Receivables or any of the other Sold Assets or Seller Collateral, free and clear of any Adverse Claim other than Permitted Liens;
(e) The Program Agentthe Seller, on behalf the Pledgor, any Originator, the Performance Guarantor or the Servicer 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 Insolvency Proceeding shall be instituted by or against the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer and, in the case of any such proceeding instituted against such Person (but not instituted by such Person), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days, or any of the Secured Partiesactions 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 cease occur; or the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer shall take any corporate or organizational action to have a valid and perfected first priority security interest authorize any of the actions set forth above in the Pledged Contracts and Collections with respect thereto or any other Collateralthis paragraph;
(fi) An Event of Bankruptcy the average for three consecutive Fiscal Months of:
(A) the Default Ratio shall occur with respect exceed (1) prior to any Transaction Partythe Spin-Off Date, 4.0%, and (2) on and after the Spin-Off Date, 7.5%,
(B) the Delinquency Ratio shall exceed (1) prior to the Spin-Off Date, 11.5%, and (2) on and after the Spin-Off Date, 12.0%, or
(C) the Dilution Ratio shall exceed (1) prior to the Spin-Off Date, 6.5%, and (2) on and after the Spin-Off Date, 7.5%, or
(ii) the Days’ Sales Outstanding shall exceed (A) prior to the Spin-Off Date, 60 days, and (B) on and after the Spin-Off Date, 85 days;
(g) A Servicer Default a Change in Control shall occur;
(h) a Capital Coverage Deficit shall occur, and shall not have been cured within three (3) Business Days;
(i) (i) the Seller or the Pledgor shall fail to pay any principal of or premium or interest on any Debt when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (ii) any Originator, the Performance Guarantor or the Servicer, or any of their respective Subsidiaries, individually or in the aggregate, shall fail to pay any principal of or premium or interest on any of its Debt under the Parent Senior Credit Agreement (whether or not funded) or any other Debt that is outstanding in a principal amount of at least $1,000,000,000 in the aggregate when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (iii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt (as referred to in clause (i) or (ii) of this paragraph and shall continue after the applicable grace period (not to exceed 30 days), if any, specified in such agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt (as referred to in clause (i) or (ii) of this paragraph) or to terminate the commitment of any lender thereunder, or (iv) any such Debt (as referred to in clause (i) or (ii) of this paragraph) shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case before the stated maturity thereof;
(j) the Performance Guarantor shall fail to perform any of its material obligations under the Performance Guaranty;
(i) the Seller shall fail (x) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 8.03(c) of this Agreement for Independent Directors, on the Seller’s board of directors or (y) to timely notify the Administrative Agent of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to Section 8.03(c) of this Agreement or (ii) the Pledgor shall fail (x) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 5.1(c) of the Pledgor Purchaser Assignment, which shall be substantially similar to Section 8.03(c) of this Agreement for Independent Directors, on the Pledgor’s board of directors or (y) to timely notify the Seller and the Administrative Agent of any replacement or appointment of any director that is to serve as an Independent Director on the Pledgor’s board of directors as required pursuant to Section 5.1(c) of the Pledgor Purchaser Assignment, which shall be substantially similar to Section 8.03(c) of this Agreement;
(l) there shall have occurred any event which materially adversely impairs, in the reasonable discretion of Administrative Agent, the collectability of the Pool Receivables generally or any material portion thereof and such event or events either individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect;
(m) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Seller, the Pledgor, any Originator or the Parent or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller, the Pledgor, the Servicer, any Originator or the Parent with respect to liabilities in the aggregate in excess of $400,000,000;
(n) the Parent or any ERISA Affiliate shall fail to satisfy minimum funding requirements under Section 412 of the Internal Revenue Code or Section 302 of ERISA to any Plan, or apply for a waiver of such requirements, and such failure could reasonably be expected to subject the Parent or any of its Subsidiaries to any liabilities in the aggregate in excess of $1,000,000,000;
(o) prior to the Spin-Off Date, a Pledgor Purchase and Sale Termination Event shall occur under the Pledgor Purchase and Sale Agreement;
(p) a Purchase and Sale Termination Event shall occur under the Purchase and Sale Agreement;
(i) the Seller shall (x) be required to register as an “investment company” within the meaning of the Investment Company Act or (y) the transactions contemplated by this Agreement and the Transaction Documents result in the Administrative Agent or any Purchaser having an “ownership interest” (as defined in § .10(d)(6) of the Xxxxxxx Rule) in the Seller or (ii) the Pledgor shall (x) be required to register as an “investment company” within the meaning of the Investment Company Act or (y) the transactions contemplated by the Pledgor Purchaser Assignment, this Agreement and the Transaction Documents result in the Seller, the Administrative Agent or any Purchaser having an “ownership interest” (as defined in § .10(d)(6) of the Xxxxxxx Rule) in the Pledgor;
(r) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer (or any of their respective Affiliates) shall so state in writing; or
(s) one or more judgments or decrees shall be entered against the Seller, the Pledgor, any Originator, the Performance Guarantor or the Servicer, or any Affiliate of any of the 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 $250,000,000 (or solely with respect to the Seller or the Pledgor, $15,775); then, and in any such event, unless such event has been waived in accordance with this Agreement, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the Seller (w) foreclose on the Pledged Collateral or direct the Seller to foreclose on the Pledged Collateral, (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred), (y) declare the Seller Obligation Final Due Date to have occurred (in which case the Seller Obligation Final Due Date shall be deemed to have occurred) and (z) declare the Aggregate Capital and all other Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other 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) of this Section 10.01 with respect to the Seller, the Termination Date shall occur and the Aggregate Capital and all other 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 and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Sold Assets and Seller Collateral shall be applied in the order of priority set forth in Section 4.01.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Warner Bros. Discovery, Inc.)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transaction Party shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due (other than as referred to in Section 7.01(f)) and such failure shall continue continues unremedied for three (3i) in the case of Interest, two (2) Business DaysDays or (ii) in the case of any other payment or deposit, one (1) Business Day;
(cb) The Borrower, the Originator, any Transaction Party other than the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained hereunder (other than as referred to in this Agreement Sections 7.01(a) or 7.01(f)) or any other Facility Document on its part to be performed or observed and any such failure shall remain continue unremedied for five (5) Business Days after the earlier of (x) such Transaction Party obtains actual knowledge thereof or (y) any Affected Party gives Managing Agent delivers written notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofsuch Transaction Party;
(dc) Any representation any representation, warranty, certification or warranty made or deemed to be statement made by the Borrowerany Transaction Party in this Agreement, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including Document, any Monthly Report, any Monthly Serviced Portfolio ReportWeekly Report or in any other document, any Borrowing Base Certificate, any Borrowing Request report or other information or report delivered pursuant hereto) hereto or thereto shall prove to have been materially false or incorrect in any material respect on the date as of which made or deemed made (or, in the case of any representation, warranty, certification or statement that by its terms refers to an earlier date, shall have been false or incorrect in any material respect on and as of such earlier date) (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on a Material Adverse Effect by its express terms);
(d) any failure of Borrower to pay any Indebtedness (other than Indebtedness created under the Facility Documents) when made or deemed made or delivereddue;
(e) The Program Agentan Event of Bankruptcy occurs in respect of any Transaction Party;
(f) either (i) a Borrowing Base Deficiency shall occur, and shall not have been cured within two (2) Business Days after the date on behalf which the Borrower or the Servicer knows or should know of the existence thereof, (ii) any Collections shall be Released by the Borrower or the Servicer at any time during which a Borrowing Base Deficiency shall exist in violation of either (x) the proviso set forth in Section 2.06(a)(iv) or (y) the proviso set forth in Section 2.06(c)(iii), and in either case, an amount equal to the amount of any such Release shall not have been deposited into the Collection Account within two (2) Business Days after the earlier of the date on which (x) the Borrower or the Servicer obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to the Borrower or the Servicer, or (iii) any payment shall be made at any time during which the aggregate Outstanding Balance of Receivables owned by the Borrower at such time is less than the sum of the Borrower Obligations in violation of Section 8.12 of the Receivables Sale Agreement, and an amount equal to the amount of such payment shall not have been returned to the Borrower within two (2) Business Days after the earlier of the date on which (x) such Originator obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to such Originator or the Borrower;
(g) as at the end of any Monthly Period:
(i) the average of the Dilution Trigger Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 14.0%;
(ii) the average of the Delinquency Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 8.5%;
(iii) the average of the Default Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 4.5%; or
(iv) the average of the Days Sales Outstanding for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 90 days;
(h) a Change of Control shall occur;
(i) one or more final judgments for the payment of money shall be entered against Borrower in an amount in excess of $16,750, individually or in the aggregate, and such judgment or judgments shall continue unsatisfied or unstayed and in effect for 60 days;
(j) (i) the “Termination Date” under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or (ii) any Originator shall for any reason (other than as a result of a Permitted Disposition) cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to Borrower under the Receivables Sale Agreement or (iii) Borrower shall for any reason (other than as a result of a Permitted Disposition) cease to purchase, or cease to have the legal capacity to purchase, or otherwise be incapable of accepting Receivables from any Originator under the Receivables Sale Agreement;
(k) this Agreement or any other Facility Document shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of any Transaction Party, or any Transaction Party shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or the Administrative Agent for the benefit of the Secured Parties, Parties shall cease to have a valid and perfected first priority security interest in the Pledged Contracts Receivables, the Related Security and the Collections with respect thereto and the Deposit Accounts;
(l) any Person shall be appointed as an Independent Manager of the Borrower without prior notice thereof having been given to the Administrative Agent in accordance with Section 5.01(b)(viii) or without the written acknowledgement by the Administrative Agent that such Person conforms, to the satisfaction of the Agent, with the criteria set forth in the definition herein of “Independent Manager”;
(m) an ERISA Event shall have occurred that, in the opinion of the Required Managing Agents, when taken together with all other ERISA Events that have occurred, would result in a Material Adverse Effect;
(n) the occurrence of any event or circumstance that could reasonably be expected to have a material adverse effect on (i) the legality, validity or enforceability of this Agreement or any other Collateral;Facility Document, (ii) any Secured Party’s interest in the Receivables generally or in any material portion (as determined in the sole discretion of any Managing Agent) of the Receivables, the Related Security or the Collections with respect thereto, or (iii) the collectability of the Receivables generally or of any material portion of the Receivables; or
(fo) An Event the occurrence of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;Default.
Appears in 1 contract
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower the Parent, the Distributor (as Distributor, Principal Shareholder Servicer or as Servicer), the Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent, any Sub-transfer Agent, any Company or any Fund shall fail to make any payment (x) of principal or cause to be made in respect of the Loans manner and when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made or to be caused to be made by it hereunder (under this Agreement or any of the other than as described in clause (a) above) or under any other Facility Document when due Program Documents and such failure shall continue unremedied for three (3) Business Days;; or
(cb) The Borrowerthe Parent, the OriginatorDistributor (as Distributor, Principal Shareholder Servicer or as Servicer), the Servicer Seller, the Transferor, the Shareholder Servicer, any Advisor, any Transfer Agent or any Performance Guarantor Selling Agent, any Company or any Fund shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed under any Program Document (other than those described in clause (a) of this Section 6.01) and any such failure shall remain unremedied continue for five ten (510) Business Days after any Affected Party gives notice thereof to a Responsible Officer such Person has knowledge of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;such failure; or
(dc) Any (i) any representation or warranty made or deemed to be made by the BorrowerParent, the OriginatorDistributor (as Distributor, Principal Shareholder Servicer or as Servicer), the Seller, the Transferor, the Shareholder Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Program Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false incorrect when made or deemed made; provided, however, that if any such incorrect representation or warranty is capable of being cured within ten (except that 10) Business Days and the materiality standard Person in this clause (d) shall not apply to any breach of such representation or warranty is diligently using its best efforts to cure such representation or warranty, such incorrect representation or warranty shall not constitute an Event of Termination if, within such ten (10) Business Day period, such incorrect representation or warranty has been cured and the Parent has certified to the Program Agent that is qualified such cure has been effected, or (ii) any Investor Report, any Activity Report or any other statement, certificate or report delivered by or on behalf of the Parent, the Distributor, the Seller, the Transferor or the Shareholder Servicer in connection with this Agreement, or any other Program Document, shall have been false, incorrect or misleading, when taken as a materiality standard by its termswhole, in any material respect when delivered; or
(d) when made the Purchaser shall fail to acquire in a True Sale, or deemed made or delivered;shall cease to have, a 100% undivided ownership interest in any Purchased Receivable, free and clear of any Adverse Claim; or
(e) The Program (i) the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent, on behalf any Sub-transfer Agent, any Company or any Fund or any Significant Affiliate thereof 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, in the case of the Secured PartiesDistributor, the Distributor shall cease otherwise become “insolvent” within the meaning of SIPA; or (ii) any proceeding shall be instituted by or against the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent, any Sub-transfer Agent, any Company, any Fund or any Significant Affiliate thereof seeking to have adjudicate it a valid and perfected first priority security interest bankrupt or insolvent, or seeking liquidation, winding up reorganization, arrangement, adjustment, protection, relief, or composition of it or its Debts under any Applicable 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 Pledged Contracts and Collections with respect thereto 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 sixty (60) days; or (iii) any of the actions sought in any proceeding described in (ii) above (including 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 (iv) the Seller, the Transferor, the Distributor, the Parent, the Shareholder Servicer, any Advisor, any Transfer Agent, any Sub-transfer Agent, any Company, any Fund or any other Collateral;Significant Affiliate thereof shall take any action to authorize any of the actions set forth above in this Section 6.01(e); or
(f) An Event there shall have occurred any material adverse change in (i) the financial condition or results of Bankruptcy operations of the Parent and its consolidated subsidiaries taken as a whole since September 30, 2000, or (ii) the Seller, the Transferor, the Shareholder Servicer, the Parent, the Distributor, any Advisor or any Transfer Agent which is an Affiliate of the Parent shall occur with fail to make payments when due in respect to any Transaction Party;of Debt aggregating in excess of $10,000,000, provided that the determination of default on such Debt is not being diligently contested in good faith through appropriate proceedings; or
(g) A Servicer Default any Distribution Plan, Distribution Agreement, Principal Shareholder Servicer’s Agreement, Shareholder Servicer’s Agreement, Prospectus, the Conduct Rules or the Investment Company Act, or the CDSC arrangements applicable to holders of Shares of any Fund or the terms of any Conversion Feature in respect of any Share of any Fund, each as in effect on the date of this Agreement, or the Fundamental Investment Objectives in respect of any Fund, shall occur;be amended, waived, supplemented or modified, in any manner or by any means (including a change in Applicable Law), which would reasonably be expected to have a Material Adverse Effect, unless waived by the Program Agent; or
(h) the Securities Investor Protection Corporation, established under SIPA, shall have applied for a protective decree against the Distributor; or
(i) the Distributor shall have failed to meet the minimum capital requirements prescribed from time to time by Rule 15c3-1 under the Exchange Act and such failure continues uncured for ten (10) days after the Distributor obtains knowledge thereof; or
(j) the SEC shall have modified or terminated Rule 12b-1 of the Investment Company Act or the NASD shall have modified or terminated the Conduct Rules in a manner which could reasonably be expected to give rise to a Material Adverse Effect; or
(k) the Distributor shall cease to be registered as a broker/dealer under the Exchange Act and with the NASD or the NASD suspends the Distributor’s membership or registration; or
(l) any Company or any Transfer Agent shall, without the written consent of the Program Agent, fail to withhold from redemption proceeds paid to any holder of a Share any CDSC required to be withheld and remit such funds strictly in accordance with any Irrevocable Payment Instruction, or shall be prevented by any Authority or by any Applicable Law from doing so or any Company or any Transfer Agent shall so assert in writing; or
(m) any Fund or any Company shall be required by any Authority or any Applicable Law to cease or suspend the sale of Shares of any Fund under circumstances that could reasonably be expected to result in a Material Adverse Effect; or
(n) any Company in respect of itself or any Fund shall propose or effect a merger, consolidation or other combination with another Person or any Liquidation Plan other than a Permitted Merger; or
(o) an Event of Termination (as defined in the Prior Purchase Agreement); or
(p) the applicable Advisor shall cease to act as the investment advisor of any Fund under the applicable Advisory Agreement; then in respect of any occurrence of any such event, the Program Agent may in respect of each such occurrence, by notice to the Seller declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred); provided, that, upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) or (h) of this Section 6.01, the Termination Date shall be deemed to have automatically occurred.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Federated Investors Inc /Pa/)
Events of Termination. If any of the The following events (each, an shall be “Event Events of Termination”) shall occur” hereunder:
(a) The Borrower Any of the following events:
(i) any Seller, Servicer, any Originator or Sprint Corporation shall fail to make perform or observe any payment covenant or agreement as and when required hereunder or under any other Transaction Document (xother than any covenant or agreement referred to in clause (a)(ii) of principal in respect below) and such failure remains unremedied for thirty (30) days after the earlier of the Loans when due date (whether at stated maturity, upon acceleration A) such Person receives notice of such failure from the Collateral Agent or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) any Administrative Agent or (yB) a Responsible Officer obtains actual knowledge of Interest on the Loans or Liquidity Fees when duesuch failure;
(bii) The Borrowerany of the following shall occur: any Seller, the OriginatorServicer, the Servicer any Originator or any Performance Guarantor Sprint Corporation shall fail to make any payment or deposit or transfer of monies required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Transaction Document (including, without limitation, any obligation of an Originator to pay the Lease Upgrade Payment Amount in accordance with the Sale Agreement) as and when due and such failure shall continue unremedied for is not remedied within three (3) Business Days after the earlier of the date (A) such Person receives notice of such failure from the Collateral Agent, any Administrative Agent or any Purchaser Agent or (B) a Responsible Officer obtains actual knowledge of such failure;
(iii) the Servicer shall fail to deliver any Information Package when due pursuant to Section 3.1(a) and such failure is not remedied within two (2) Business Days;
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrowerany Seller, the OriginatorServicer, the Servicer any Originator or any Performance Guarantor Sprint Corporation under or in connection with this Agreement or any other Facility Transaction Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect in any material respect when made or deemed to be made (except that the materiality standard in this clause (d) shall not apply without duplication as to any materiality modifiers, qualifications, or limitations applicable thereto) for a period of ten (10) days after the earlier of the date (i) such Person receives notice thereof from the Collateral Agent or any Administrative Agent, or (ii) a Responsible Officer obtains actual knowledge thereof (unless such representation or warranty that is qualified by relates solely to one or more specific Pool Receivables and Seller makes a materiality standard by its terms) when made or deemed made or deliveredDeemed Collection payment with respect to such Pool Receivable if and as required pursuant to Section 3.2(a));
(ec) an Event of Bankruptcy shall have occurred with respect to any Seller, the Servicer, Sprint Corporation, any Originator or Sprint Corporation;
(d) a Change of Control shall occur;
(A) The Program Collateral Agent, on behalf for the benefit of the Secured PartiesPurchasers, shall cease fails at any time to have a valid and perfected ownership interest or first priority perfected security interest in the Pledged Pool Receivables, Lease Contracts and Collections with respect thereto any Related Assets (or any portion thereof) and all identifiable cash proceeds of any of the foregoing, in each case, free and clear of any Adverse Claim (other Collateralthan any Permitted Adverse Claim) or (B) the Collateral Agent shall fail to have a valid first priority perfected security interest in each Lock-Box Account;
(f) An ERISA Event shall have occurred that is reasonably expected to result in a Material Adverse Effect; provided, however, that the occurrence of Bankruptcy any ERISA Event that results in or is reasonably expected to result in the imposition of a lien by the PBGC on the assets of any Seller shall occur with respect be considered as reasonably expected to any Transaction Party;result in a Material Adverse Effect.
(g) A Servicer Default any of Servicer, Sprint Corporation, any Seller or any Originator, shall occurbe (i) required to register as an “investment company” or (ii) “controlled” by an “Investment Company”, in each case, under (and as defined in) the Investment Company Act;
(h) any material provision of this Agreement, the Sale Agreement, the Fee Letters, the Lock-Box Agreements or the Performance Support Agreement shall cease to be the valid and binding obligation enforceable against the Servicer, Sprint Corporation, any Seller or any Originator;
(i) any Seller shall fail to pay in full all of its Obligations to the Collateral Agent, any Administrative Agent or any Purchaser hereunder on or prior to the Legal Final;
(j) one or more final judgments for the payment of money in an aggregate amount in excess of $250,000,000 (or, in the case of a judgment rendered against any Seller, individually, $15,325) shall be rendered against Sprint Corporation (or any Significant Subsidiary) and the same shall remain undischarged for a period of 60 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 Sprint Corporation (or any Significant Subsidiary) to enforce any such judgment; or
(k) the Performance Support Agreement is canceled, rescinded, amended or modified without the prior written consent of the Collateral Agent, each Administrative Agent and each Purchaser Agent. An Event of Termination shall be deemed to be continuing until waived in writing by each Administrative Agent, the Collateral Agent and the Required Purchasers.
Appears in 1 contract
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower (i) the Seller, any Originator, the Performance Guarantor or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall continue for thirty (30) days after the earlier of (x) written notice to the Seller, any Originator, the Performance Guarantor, or the Servicer by the Administrative Agent or any Purchaser, and (y) actual knowledge of the Seller, any Originator, the Performance Guarantor, or the Servicer, (ii) the Seller, any Originator, the Performance Guarantor or the Servicer shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) under this Agreement or under any other Facility Transaction Document when due and such failure shall continue unremedied for three (3) Business DaysDays or (iii) Xxxxxx shall resign as Servicer, and if the Parent or an Affiliate thereof has not been appointed as Servicer hereunder, no successor Servicer reasonably satisfactory to the Administrative Agent shall have been appointed;
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any written representation or warranty made or deemed to be made by the BorrowerSeller, the any Originator, the Performance Guarantor or the Servicer (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, any Originator, the Performance Guarantor or the Servicer pursuant hereto) to this Agreement or any other Transaction Document, shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered, provided, however, any breach of any representation or warranty set forth in Section 7.01(m), 7.01(u), 7.02(i) or 7.02(l) shall not constitute an Event of Termination if a Deemed Collection payment is timely and fully made in connection therewith in accordance with Section 4.01(d);
(c) the Seller or the Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days after written notice of such failure has been given to the Seller or the Servicer;
(d) 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 Pool Receivables or any of the other Sold Assets or Seller Collateral, free and clear of any Adverse Claim other than Permitted Liens;
(e) The Program Agentthe Seller, on behalf any Originator, the Performance Guarantor or the Servicer 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 Insolvency Proceeding shall be instituted by or against the Seller, any Originator, the Performance Guarantor or the Servicer and, in the case of any such proceeding instituted against such Person (but not instituted by such Person), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days, or any of the Secured Partiesactions 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 cease occur; or the Seller, any Originator, the Performance Guarantor or the Servicer shall take any corporate or organizational action to have a valid and perfected first priority security interest authorize any of the actions set forth above in the Pledged Contracts and Collections with respect thereto or any other Collateralthis paragraph;
(fi) An Event of Bankruptcy the average for three consecutive Fiscal Months of:
(A) the Default Ratio shall occur with respect to any Transaction Partyexceed 7.5%,
(B) the Delinquency Ratio shall exceed 12.0%, or
(C) the Dilution Ratio shall exceed 7.5%, or
(ii) the Days’ Sales Outstanding shall exceed 95 days;
(g) A Servicer Default a Change in Control shall occur;
(h) a Capital Coverage Deficit shall occur, and shall not have been cured within three (3) Business Days;
(i) (i) the Seller shall fail to pay any principal of or premium or interest on any Debt when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (ii) any Originator, the Performance Guarantor or the Servicer, or any of their respective Subsidiaries, individually or in the aggregate, shall fail to pay any principal of or premium or interest on any of its Debt under the Parent Senior Credit Agreement (whether or not funded) or any other Debt that is outstanding in a principal amount of at least $1,000,000,000 in the aggregate when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (iii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt (as referred to in clause (i) or (ii) of this paragraph and shall continue after the applicable grace period (not to exceed 30 days), if any, specified in such agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt (as referred to in clause (i) or (ii) of this paragraph) or to terminate the commitment of any lender thereunder, or (iv) any such Debt (as referred to in clause (i) or (ii) of this paragraph) shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case before the stated maturity thereof;
(j) the Performance Guarantor shall fail to perform any of its material obligations under the Performance Guaranty;
(k) the Seller shall fail (x) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 8.03(c) of this Agreement for Independent Directors, on the Seller’s board of directors or (y) to timely notify the Administrative Agent of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to Section 8.03(c) of this Agreement;
(l) there shall have occurred any event which materially adversely impairs, in the reasonable discretion of Administrative Agent, the collectability of the Pool Receivables generally or any material portion thereof and such event or events either individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect;
(m) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Seller, any Originator or the Parent or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller, the Servicer, any Originator or the Parent with respect to liabilities in the aggregate in excess of $400,000,000;
(n) the Parent or any ERISA Affiliate shall fail to satisfy minimum funding requirements under Section 412 of the Internal Revenue Code or Section 302 of ERISA to any Plan, or apply for a waiver of such requirements, and such failure could reasonably be expected to subject the Parent or any of its Subsidiaries to any liabilities in the aggregate in excess of $1,000,000,000;
(o) [reserved];
(p) a Purchase and Sale Termination Event shall occur under the Purchase and Sale Agreement;
(q) the Seller shall (x) be required to register as an “investment company” within the meaning of the Investment Company Act or (y) the transactions contemplated by this Agreement and the Transaction Documents result in the Administrative Agent or any Purchaser having an “ownership interest” (as defined in § _____.10(d)(6) of the Xxxxxxx Rule) in the Seller;
(r) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, any Originator, the Performance Guarantor or the Servicer (or any of their respective Affiliates) shall so state in writing; or
(s) one or more judgments or decrees shall be entered against the Seller, any Originator, the Performance Guarantor or the Servicer, or any Affiliate of any of the 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 $250,000,000 (or solely with respect to the Seller, $15,775); then, and in any such event, unless such event has been waived in accordance with this Agreement, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the Seller (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred), (y) declare the Seller Obligation Final Due Date to have occurred (in which case the Seller Obligation Final Due Date shall be deemed to have occurred) and (z) declare the Aggregate Capital and all other Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other 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) of this Section 10.01 with respect to the Seller, the Termination Date shall occur and the Aggregate Capital and all other 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 and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Sold Assets and Seller Collateral shall be applied in the order of priority set forth in Section 4.01.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Warner Bros. Discovery, Inc.)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make Collection Agent (if the Parent, any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer Originator or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of their respective Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this subsection (a)) and such failure shall remain unremedied for twenty Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) The Parent, the Seller or any Originator shall fail (i) to transfer to the Agent when requested any rights, pursuant to this Agreement, which the Parent, the Seller or any Originator then has as Collection Agent, or (ii) to make any payment required under Section 2.04; or
(c) Any representation or warranty made or deemed made by the Seller, the Parent or the Collection Agent (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report (including, without limitation, the Weekly Report, the Seller Report and the E-Mail Report) delivered by the Seller or the Collection Agent pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and, if capable of remedy, shall remain unremedied for 10 days after the date on which any officer of the Seller, the Parent or the Collection Agent, as applicable, shall have knowledge thereof; or
(1) The Parent, the Seller or any Originator shall fail to perform or observe any other term, covenant (other than Section 5.01(s)) or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) a period of twenty Business Days after any Affected Party gives notice thereof to a Responsible Officer Days; provided, however, that, the failure of the BorrowerSeller to comply with Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x) and (r) hereof shall not be subject to the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;foregoing cure period; or
(d2) Any representation or warranty made or deemed The Seller shall fail to be made observe the covenant contained in Section 5.01(s) and such failure to comply shall remain unremedied by the Borrower, earlier to occur of (x) the Originator, Business Day immediately following the Servicer or any Performance Guarantor under or delivery of the Seller Report in connection accordance with the provisions of this Agreement or any other Facility Document and (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant heretoy) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;twenty Business Days; or
(e) The Program AgentSeller or the Originator shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $25,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, on behalf 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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument (except, during the Reporting Extension Period, if such event occurs or condition exists under any Public Debt as a result of the Secured Partiesfailure of the Parent to file or deliver financial statements or reports substantially the same as those described in Sections 5.01(k)(i), 5.01(k)(ii) and 5.01(k)(xiv) above), if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any purchase or any reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to have create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.10 shall for any reason cease to be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect collateral security referred to any Transaction Party;in that section; or
(g) A Servicer Default The Parent, Seller or any Originator shall generally not pay its respective 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 or the Originator 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 45 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 the Parent, Seller or any Originator shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) The Parent shall directly or indirectly, make or agree to make any payment to or for the account of any holder of Public Debt, or any trustee or other representative of any such holder, on account of principal of, interest on or fees in respect of such Public Debt, except as required by the terms of such Public Debt as in effect on the Amendment Closing Date; or
(i) Either (x) the average of the Default Ratio for any consecutive three Month period shall exceed 6%, (y) the average of the Dilution Ratio for any consecutive three Month period shall exceed 5% or (z) the average of the Loss-to-Liquidation Ratio for any consecutive three Month period shall exceed 1.5%; or
(j) The Net Receivables Pool Balance shall be less than the Required Weekly Net Receivables Pool Balance upon the termination of a Cure Period; or
(k) There shall have occurred any material adverse change in the financial condition or operations of the Parent, the Seller or any Originator since August 28, 1999; or there shall have occurred any event which may materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement; or
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENTS OF TERMINATION") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained under this Agreement (other than as referred to in clause (ii), (iii), (iv) or (v) of this subsection (a)) and such failure shall remain unremedied for three Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure, in the case of payments on account of Yield or Fees only, shall remain unremedied for three Business Days or (iii) shall fail to deliver any Monthly Report when required and such failure shall remain unremedied for two Business Days, or (iv) shall fail to deliver any Weekly Report when required and such failure shall remain unremedied for one Business Day (provided that the grace period in this clause (iv) may not be utilized more than once in any four-week period), or (v) shall fail to deliver any Daily Report when required and such failure shall remain unremedied for one Business Day (provided that the grace period in this clause (v) may not be utilized more than once in any four-week period, PROVIDED, that failure or delay in delivering the relevant Seller Reports pursuant to clauses (iii), (iv) or (v) above shall be excused for not more than three Business Days beyond the time period allowed thereunder, if such failure or delay is caused by force majeure or other circumstances beyond the Collection Agent's reasonable control, including war, riot, flood, earthquake or other natural disaster, breakdown of public or private or common carrier communications or transmission facilities; or
(b) The Seller shall fail to make any payment required under Section 2.04(e) and such failure shall remain unremedied for three Business Days;
(c) Any representation or warranty made or deemed made by the Seller, any Originator, the Parent or the Collection Agent (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document or any information or report delivered by the Seller, any Originator, the Parent or the Collection Agent pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, unless the breach of such representation or warranty is capable of being cured and is in fact cured (without any adverse impact on the Agents, the Investors or the Banks or the collectibility of the Pool Receivables) within ten days of the first date on which the Seller receives written notice or obtains actual knowledge of such breach; or
(i) The Seller shall fail to perform or observe any of its covenants contained in the second sentence of Section 5.01(b) or in Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (q) or (r) of this Agreement, or (ii) the Seller shall fail to perform or observe any of its covenants contained in Section 5.01(j)(i) or 5.02 and such failure under this clause (ii) shall continue unremedied for 10 days, or (iii) any Originator shall fail to perform or observe any of its covenants contained in Section 5.02 or 6.05 and such failure under this clause (iii) shall continue unremedied for 10 days, or (iv) the Seller or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure under this clause (iv) shall remain unremedied for five (5) Business Days 20 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, Seller by the Originator, the Servicer Program Agent or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Investor Agent; or
(e) The Program AgentSeller or any Originator shall fail to pay any principal of or premium or interest on any of its Debt (which in the case of any Originator, on behalf is outstanding in a principal amount of at least $25,000,000 in the aggregate) when the same becomes due and payable (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 Debt (PROVIDED, THAT for the purposes of this Section 7.01(e), the term "Debt" shall exclude any Debt owing to a Subsidiary of any Originator, PROVIDED, HOWEVER, that any affirmative action taken against any such Originator with respect to such Debt shall nullify the foregoing exclusion); or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) Any purchase or reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) cease to create, or any Receivable Interest shall for any reason cease to be a valid and perfected first priority undivided percentage ownership interest to the extent of the Secured Parties, pertinent Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.11 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect collateral security referred to any Transaction Party;in that section; or
(g) A Servicer Default The Seller, the Collection Agent or any Originator 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, the Collection Agent or any Originator 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 45 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 the Seller, or any Originator shall take any limited liability company or corporate or other action to authorize any of the actions set forth above in this subsection (g); or
(h) As of the last day of any Fiscal Month, either (i) the average of the Default Ratios for such Fiscal Month and the two immediately preceding Fiscal Months shall exceed ********or (ii) the average of the Delinquency Ratios for such Fiscal Month and the two immediately preceding Fiscal Months shall exceed ********or (iii) the Loss-to-Liquidation Ratio for such Fiscal Month shall exceed ********or (iv) the average of the Dilution Ratios for such Fiscal Month and the two immediately preceding Fiscal Months shall exceed ********; or
(i) The sum of the Receivable Interests shall be greater than the Maximum Receivable Interest for five consecutive Business Days; or
(j) There shall have occurred any event which may materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller, any Originator or the Collection Agent to collect Pool Receivables or otherwise perform its obligations under this Agreement and such event, if capable of being cured, continues for a period of three Business Days; or
(k) An "Event of Termination" or "Facility Termination Date" shall occur under the Originator Purchase Agreement, or any Transaction Document shall cease to be in full force and effect, or the Seller or any Originator shall state in writing that any Transaction Document or provision thereof shall cease to be valid and binding on it; or
(l) All of the outstanding membership interests of the Seller shall cease to be owned, directly or indirectly, by the Parent, or all of the outstanding capital stock of any Originator (other than the Parent) ceases to be owned, directly or indirectly, by the Parent; or
(m) One or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 (except to the extent covered by insurance as to which the insurer has acknowledged such coverage in writing) shall be rendered against (i) any Originator or any of its Subsidiaries or any combination thereof or (ii) the Collection Agent or any of its Subsidiaries or a combination thereof, and the same shall remain undischarged for more than 30 days (whether or not consecutive) during which execution shall not be effectively stayed, or any action shall be taken by a judgment creditor to attach or levy upon any assets of any Originator or the Collection Agent or any of their respective Subsidiaries to enforce any such judgment; or
(n) The Parent's Debt Rating is below BB- by S&P or below B1 by Xxxxx'x, or is withdrawn or suspended by S&P or Xxxxx'x; or
(o) The Parent or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $15,000,000, or the Parent or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), PROVIDED that such event (A) would be expected to result in liability of the Parent or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $15,000,000 and (B) would constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan; then, and in any such event, any or all of the following actions may be taken by notice to the Seller: (x) the Program Agent may in its discretion, and shall, at the direction of any Investor Agent, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), (y) the Program Agent may in its discretion, and shall, at the direction of any Investor Agent, declare the Commitment Termination Date to have occurred (in which case the Commitment Termination Date shall be deemed to have occurred), and (z) without limiting any right under this Agreement to replace the Collection Agent, the Program Agent may in its discretion, and shall, at the direction of any Investor Agent, designate another Person to succeed the Parent as the Collection Agent; PROVIDED, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date and the Commitment Termination Date shall occur, the Parent (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Program Agent or its designee shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Investors, the Investor Agents, the Banks and the Program Agent shall have, in addition to the rights and remedies which they 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 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Agent or Citibank) (i) shall fail to make perform or observe any payment term, covenant or agreement hereunder (xother than as referred to in clause (ii) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to this Section 2.05(b) or otherwise7.01(a)) and without giving effect to availability of funds) such failure shall remain unremedied for three Business Days or (yii) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;due; or
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.03(e) of the CAFCO Agreement or Section 6.03(a) of the CAFCO Agreement (in each case as incorporated herein by reference); or
(c) Any representation or warranty made or deemed to be made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement or any Investor Report or other Facility Document information or report delivered pursuant hereto or to the Original Agreement shall prove to have been false or incorrect in any material respect when made; or
(d) The Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) ten Business Days after any Affected Party gives written notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made shall have been given by the Borrower, Agent to the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Seller; or
(e) The Program AgentAny Purchase or any reinvestment pursuant to Section 2.05 shall for any reason, on behalf of except to the Secured Partiesextent permitted by the terms hereof (including Section 4.01(h), shall cease to have create, or any Eligible Asset shall for any reason cease to be, a valid and perfected first priority security interest undivided percentage Ownership Interest to the extent of the pertinent Eligible Asset in each applicable Pool Receivable and the Pledged Contracts Related Security and Collections with respect thereto or the Certificate shall for any other Collateral;reason cease to evidence in the Owner of such Eligible Asset legal and equitable title to, and ownership of, an undivided percentage ownership interest in Pool Receivables and Related Security to the extent of such Eligible Asset; or
(f) An Event The Delinquency Ratio as at the last day of Bankruptcy any calendar month shall occur with respect to exceed 45% or the Default-to-Delinquency Ratio as at the last day of any Transaction Party;calendar month shall exceed 50%; or
(g) A Servicer Default The Net Receivables Pool Balance shall occur;for a period of five consecutive Business Days be less than 115% of the sum of the aggregate outstanding Capital of all Eligible Assets and of the aggregate outstanding "Capital" or all "Eligible Assets" under the CAFCO Agreement; or
(h) There shall have been any material adverse change in the financial condition or operations of the Seller since December 31, 1990, or 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 Seller to collect Pool Receivables or the ability of the Seller to perform hereunder; or
(i) There shall have occurred any event which constitutes or would, with the giving of notice or the lapse of time or both, constitute an "Event of Investment Ineligibility" under the CAFCO Agreement or the CAFCO Agreement shall cease for any reason to be in full force and effect; or
(j) The sum of the Eligible Assets plus the "Eligible Assets" under the CAFCO Agreement shall for a period of five consecutive Business Days be greater than 100%; then, and in any such event, the Agent may, by notice to the Seller declare the Commitment to be terminated, whereupon the Commitment shall terminate, except that, in the case of any event described above in subsection (e), or in the case of any event described in clause (i) of Section 7.01(g) of the CAFCO Agreement, the Commitment shall terminate automatically upon the occurrence of such event. Upon any such termination of the Commitment, the Agent and the Owner shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
occur (a) The Borrower shall fail to make provided, however, that the occurrence of any payment (x) of principal in respect of the Loans when due events described in clauses (whether at stated maturityb), upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of fundsc), (d) or (yo) below with respect to one or more Pool Receivables shall not constitute an Event of Interest on Termination if, after such Pool Receivable(s) are removed from the Loans or Liquidity Fees when due;calculation of Net Receivable Balance, no Borrowing Base Default shall exist):
(bi) The Borrower, the Originator, the Servicer or any Performance Guarantor Any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document to the Borrower, the Administrative Agent or any Secured Party when due and such failure payment shall continue unremedied for three not be deemed to have been timely made or (3ii) Business Daysthe Servicer shall fail to deliver a Borrowing Base Certificate as required by Section 2.03(a);
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Any Loan Party shall fail to perform or observe breach any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, unless otherwise obtains knowledge thereofprovided in this Section 7.01);
(dc) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor Loan Party under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio ReportBorrowing Request, any Borrowing Base Certificate, any Borrowing Letter of Credit Request or other information or report delivered pursuant hereto) shall shall, after expiration of any applicable cure period, prove to have been materially false or incorrect (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ed) The Program Administrative Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts Pool Receivables and the Related Security and Collections with respect thereto or any other Collateral;
(fe) An Event of Bankruptcy shall occur with respect to any Transaction Loan Party;
(g) A Servicer Default shall occur;
Appears in 1 contract
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;; ACTIVE 200146376v.2
Appears in 1 contract
Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)
Events of Termination. If any of the following events --------------------- (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of if the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer Originator or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this subsection (a)) and such failure shall remain unremedied for three Business Days after the receipt of notice or actual knowledge thereof or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement; or
(b) The Originator shall fail (i) to transfer to the Transferee when requested any rights, pursuant to this Agreement, which the Originator then has as Collection Agent, or (ii) to make any payment required under Section 2.04(a); or
(c) Any representation or warranty made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any information or report delivered by the Originator pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Originator by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Transferee; or
(e) The Program Agent, on behalf Any member of the Secured Parties, IKON Group or any Subsidiary thereof shall cease fail to have pay any principal of or premium or interest on any of its Debt which is outstanding in a valid and perfected first priority security interest principal amount of at least 10,000,000 in the Pledged Contracts aggregate when the same becomes due and Collections with respect thereto payable (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 Debt; or any other Collateral;event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(f) An Event Any member of Bankruptcy the IKON Group or any Subsidiary thereof shall occur with respect 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 Transaction Party;proceeding shall be instituted by or against any such member or Subsidiary 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 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 any such member or Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or
(g) A Servicer Default Trigger Event shall have occurred under the Receivables Transfer Agreement; or
(h) There shall have occurred any material adverse change in the financial condition or operations of the Originator since September 30, 2000; or there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of the Originator to collect Transferred Receivables or otherwise perform its obligations under this Agreement; then, and in any such event, the Transferee may (with the consent of the Administrative Agent), by notice to the Originator, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Collection Agent, designate another Person to succeed the Originator as Collection Agent; provided, that, automatically upon the occurrence of any event -------- (without any requirement for the passage of time or the giving of notice) described in paragraph (f) of this Section 7.01, the Facility Termination Date shall occur;, the Originator (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Transferee (or its assigns or designees) shall become the Collection Agent. Upon any such declaration or designation or upon such automatic termination, the Transferee shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Samples: Transfer Agreement (Ios Capital Inc)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transaction Party shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due (other than as referred to in Section 7.01(f)) and such failure shall continue continues unremedied for three (3i) in the case of Interest, two (2) Business DaysDays or (ii) in the case of any other payment or deposit, one (1) Business Day;
(cb) The Borrower, the Originator, any Transaction Party other than the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained hereunder (other than as referred to in this Agreement Sections 7.01(a) or 7.01(f)) or any other Facility Document on its part to be performed or observed and any such failure shall remain continue unremedied for five (5) Business Days after the earlier of (x) such Transaction Party obtains actual knowledge thereof or (y) any Affected Party gives Managing Agent delivers written notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofsuch Transaction Party;
(dc) Any representation any representation, warranty, certification or warranty made or deemed to be statement made by the Borrowerany Transaction Party in this Agreement, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including Document, any Monthly Report, any Monthly Serviced Portfolio ReportWeekly Report or in any other document, any Borrowing Base Certificate, any Borrowing Request report or other information or report delivered pursuant hereto) hereto or thereto shall prove to have been materially false or incorrect in any material respect on the date as of which made or deemed made (or, in the case of any representation, warranty, certification or statement that by its terms refers to an earlier date, shall have been false or incorrect in any material respect on and as of such earlier date) (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on a Material Adverse Effect by its express terms);
(d) any failure of Borrower to pay any Indebtedness (other than Indebtedness created under the Facility Documents) when made or deemed made or delivereddue;
(e) The Program Agentan Event of Bankruptcy occurs in respect of any Transaction Party;
(f) either (i) a Borrowing Base Deficiency shall occur, and shall not have been cured within two (2) Business Days after the date on behalf which the Borrower or the Servicer knows or should know of the existence thereof, (ii) any Collections shall be Released by the Borrower or the Servicer at any time during which a Borrowing Base Deficiency shall exist in violation of either (x) the proviso set forth in Section 2.06(a)(iv) or (y) the proviso set forth in Section 2.06(c)(iii), and in either case, an amount equal to the amount of any such Release shall not have been deposited into the Collection Account within two (2) Business Days after the earlier of the date on which (x) the Borrower or the Servicer obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to the Borrower or the Servicer, or (iii) any payment shall be made at any time during which the aggregate Outstanding Balance of Receivables owned by the Borrower at such time is less than the sum of the Borrower Obligations in violation of Section 8.12 of the Receivables Sale Agreement, and an amount equal to the amount of such payment shall not have been returned to the Borrower within two (2) Business Days after the earlier of the date on which (x) such Originator obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to such Originator or the Borrower;
(g) as at the end of any Monthly Period:
(i) the average of the Dilution Trigger Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 8.5%;
(ii) the average of the Delinquency Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 4.25%;
(iii) the average of the Default Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 3.5%; or
(iv) the average of the Days Sales Outstanding for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 80 days;
(h) a Change of Control shall occur;
(i) one or more final judgments for the payment of money shall be entered against Borrower in an amount in excess of $15,900, individually or in the aggregate, and such judgment or judgments shall continue unsatisfied or unstayed and in effect for 60 days;
(j) (i) the “Termination Date” under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or (ii) any Originator shall for any reason (other than as a result of a Permitted Disposition) cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to Borrower under the Receivables Sale Agreement or (iii) Borrower shall for any reason (other than as a result of a Permitted Disposition) cease to purchase, or cease to have the legal capacity to purchase, or otherwise be incapable of accepting Receivables from any Originator under the Receivables Sale Agreement;
(k) this Agreement or any other Facility Document shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of any Transaction Party, or any Transaction Party shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or the Administrative Agent for the benefit of the Secured Parties, Parties shall cease to have a valid and perfected first priority security interest in the Pledged Contracts Receivables, the Related Security and the Collections with respect thereto and the Deposit Accounts;
(l) any Person shall be appointed as an Independent Manager of the Borrower without prior notice thereof having been given to the Administrative Agent in accordance with Section 5.01(b)(viii) or without the written acknowledgement by the Administrative Agent that such Person conforms, to the satisfaction of the Agent, with the criteria set forth in the definition herein of “Independent Manager”;
(m) an ERISA Event shall have occurred that, in the opinion of the Required Managing Agents, when taken together with all other ERISA Events that have occurred, would result in a Material Adverse Effect;
(n) the occurrence of any event or circumstance that could reasonably be expected to have a material adverse effect on (i) the legality, validity or enforceability of this Agreement or any other Collateral;Facility Document, (ii) any Secured Party’s interest in the Receivables generally or in any material portion (as determined in the sole discretion of any Managing Agent) of the Receivables, the Related Security or the Collections with respect thereto, or (iii) the collectability of the Receivables generally or of any material portion of the Receivables; or
(fo) An Event the occurrence of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;Default.
Appears in 1 contract
Events of Termination. If any of the following events --------------------- (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer Seller or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates, acting as the Collection Agent, (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.01(a)) and such failure shall remain unheeded for five Business Days or (ii) shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) any representation or warranty or statement made by the Seller (or any of its officers) under or in connection with this Agreement or any Investor Report furnished by the Seller or Services, whether as Collection Agent or otherwise, or other information or report delivered by the Seller or Services, whether as Collection Agent or otherwise, or by any of its officers pursuant hereto shall prove to have been incorrect in any material adverse respect when made; or
(c) the Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) ten Business Days after any Affected Party gives written notice thereof shall have been given by the Agent to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Seller; or
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer any Purchase or any Performance Guarantor under or in connection with this Agreement reinvestment pursuant to Section 2.05 shall for any reason cease to create, or any other Facility Document (including Share shall for any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, shall reason cease to have be, a valid and perfected first priority security undivided percentage ownership interest to the extent of the pertinent Share in each applicable Pool Receivable and the Pledged Contracts Related Security and Collections with respect thereto thereto; or
(e) as of the last day of any calendar month, either the Default Ratio shall exceed 7% or any other Collateral;the Delinquency Ratio shall exceed 12% or the Loss-to-Liquidation Ratio shall exceed 0.75%; or
(f) An Event the Net Receivables Pool Balance shall for a period of Bankruptcy shall occur with respect to any Transaction Party;five consecutive Business Days be less than the sum of the aggregate outstanding Capital of all Shares and of the aggregate outstanding "Capital" of all "Shares" under the Xxxxxx Agreement; or
(g) A Servicer Default there shall occur;have been any material adverse change in the financial condition or operations of the Seller since , 199 , which materially ------------ - adversely affects the collectibility of the Pool Receivables, or which materially adversely affects the ability of the Seller to collect Pool Receivables or the ability of the Seller to perform hereunder; or
(h) there shall have occurred any event which constitutes or would, with the giving of notice or the lapse of time or both, constitute an "Event of Investment Ineligibility" under the Xxxxxx Agreement or the Xxxxxx Agreement shall cease for any reason to be in full force and effect; then, and in any such event, the Agent shall, at the request, or may with the consent, of Citibank, by notice to the Seller declare the Commitment to be terminated, whereupon the Commitment shall forthwith terminate, without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Seller; provided, however, that in the case of any event described above -------- ------- in subsection (d), or in the case of any event described in Section 7.01(f) of the Xxxxxx Agreement, the Commitment shall automatically be terminated without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Seller. Upon any such termination of the Commitment, the Agent and the Owners shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. Without limiting the foregoing or the general applicability of
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Events of Termination. If any of the following events (each, each an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make (i) any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Centric Party shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any other Facility Transaction Document on its part to be performed or observed and (other than any such failure which would constitute an Event of Termination under clause (ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall remain continue for ten (10) Business Days, (ii) any Centric Party shall fail to make when due (x) any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall continue unremedied for five two (52) Business Days after any Affected Party gives notice thereof or (iii) Centric shall resign as Servicer, and no successor Servicer reasonably satisfactory to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofAdministrative Agent shall have been appointed;
(db) Any any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer any Centric Party (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by any Centric Party pursuant hereto) to this Agreement or any other Transaction Document, shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;
(ec) The Program Agentthe Seller or the Servicer shall fail to deliver an Information Package or Interim Report at the time required pursuant to this Agreement, on behalf of the Secured Parties, and such failure shall remain unremedied for two (2) Business Days;
(d) this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to have create, or for any reason cease to be, a valid and perfected enforceable first priority perfected security interest in favor of the Pledged Contracts and Collections Administrative Agent with respect thereto or to the Support Assets, free and clear of any other CollateralAdverse Claim;
(fe) An Event any Centric 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 Centric benefit of Bankruptcy creditors; or any Insolvency Proceeding shall occur with respect be instituted by or against any Centric Party and, in the case of any such proceeding instituted against such Person (but not instituted by such Person), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive 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 any Centric Party shall take any corporate or organizational action to authorize any Transaction Partyof the actions set forth above in this paragraph;
(i) the average for three consecutive Fiscal Months of: (A) the Default Ratio shall exceed 3.50%, (B) the Delinquency Ratio shall exceed 10.00% or (C) the Dilution Ratio shall exceed 4.00%, (ii) the Default Ratio for any Fiscal Month shall exceed 5.00%, (iii) the Delinquency Ratio for any Fiscal Month shall exceed 12.00%, or (iv) the Days’ Sales Outstanding shall exceed 110 days;
(g) A Servicer Default a Change in Control shall occur;
(h) a Capital Coverage Deficit shall occur, and shall not have been cured within two (2) Business Days;
(i) (i) the Seller shall fail to pay any principal of or premium or interest on any of its Debt when the same becomes due and payable (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, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (ii) any Originator, the Performance Guarantor or the Servicer, or any of their respective Subsidiaries, individually or in the aggregate, shall fail to pay any principal of or premium or interest on (x) any Debt under any Credit Agreement or (y) any of its other Debt that is outstanding in a principal amount of at least $25,000,000 in the aggregate, in each case, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in such Credit Agreement or such agreement, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (iii) any Originator, the Performance Guarantor or the Servicer, or any of their respective Subsidiaries shall breach, fail to satisfy or otherwise default on any financial covenant or there shall occur an event of default based on the financial condition, solvency or bankruptcy of any Originator, the Performance Guarantor or the Servicer, or any of their respective Subsidiaries (including, without limitation, Sections 6.10, 7.01(h) or 7.01(i) of the First Lien Credit Agreement or Sections 6.10, 7.01(h) or 7.01(i) of the Second Lien Credit Agreement), in any case, under any Credit Agreement or any other agreement, mortgage, indenture or instrument relating to any such Debt (as referred to in clause (i) or (ii) of this paragraph) and such breach, failure or default shall continue after the applicable grace period (not to exceed thirty (30) days), if any, specified in such Credit Agreement or such other agreement, mortgage, indenture or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such breach, failure or default is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt (as referred to in clause (i) or (ii) of this paragraph) or to terminate the commitment of any lender thereunder, or (iv) any such Debt (as referred to in clause (i) or (ii) of this paragraph) shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case before the stated maturity thereof;
(j) [Reserved];
(k) the Performance Guarantor shall fail to perform any of its obligations under the Performance Guaranty;
(l) the Seller shall fail (x) 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 Section 7.03(c) of this Agreement for Independent Managers, on the Seller’s board of managers or (y) to timely notify the Administrative Agent of any replacement or appointment of any manager that is to serve as an Independent Manager on the Seller’s board of managers as required pursuant to Section 7.03(c) of this Agreement;
(m) [Reserved];
(n) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of any Centric Party or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 303(k) or Section 4068 of ERISA with regard to any of the assets of any Centric Party;
(i) the occurrence of a Reportable Event; (ii) the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 302 of ERISA; (iii) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code with respect to any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any Centric Party or any of their respective ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any Centric Party or any of their respective ERISA Affiliates from 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 Centric Party or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to any Centric Party or any of their respective ERISA Affiliates (pursuant to Section 4975 of the Code); or (ix) the occurrence or existence of any other similar event or condition with respect to a Pension Plan or a Multiemployer Plan that, with respect to each of clause (i) through (ix), either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(p) [reserved];
(q) any Originator shall notify the Administrative Agent in writing that the Buyer is unable to pay the Purchase Price for Receivables and Related Rights pursuant to Section 3.2 of the applicable Purchase and Sale Agreement as contemplated by the last sentence of such Section 3.2;
(r) the Seller shall (i) be required to register as an “investment company” within the meaning of the Investment Company Act or (y) become a “covered fund” within the meaning of the Volker Rule;
(s) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any Centric Party (or any of their respective Affiliates), any Credit Purchaser, CIT or the Receivables Financing Agent shall so state in writing;
(t) the Parent shall fail to satisfy the financial covenant set forth in Section 6.11(c) of the First Lien Credit Agreement as in effect on the Closing Date and without giving effect to any amendment or modification thereto or any termination thereof. For purposes of this clause (t) terms used and covenant levels provided for in such Section (including all defined terms used within such terms) shall have the respective meaning assigned to such terms and the covenant levels provided for, in each case, in the First Lien Credit Agreement as in effect on the Closing Date and without giving effect to any amendment or modification thereto or any termination thereof; or
(u) one or more judgments or decrees shall be entered against any Centric Party, or any Affiliate of any of the 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 $25,000,000 (or solely with respect to the Seller, $15,775); then, and in any such event, the Administrative Agent may (or, at the direction of the Majority Purchasers shall) by notice to the Seller (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred), (y) declare the Seller Obligation Final Due Date to have occurred (in which case the Seller Obligation Final Due Date shall be deemed to have occurred) and (z) declare the Aggregate Capital and all other Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other 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) of this Section 9.01 with respect to the Seller, the Termination Date shall occur and the Aggregate Capital and all other 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. Any proceeds from liquidation of the Support Assets shall be applied in the order of priority set forth in Section 3.01.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Centric Brands Inc.)
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment prepayment);
(pursuant b) The Borrower shall fail to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) make any payment of Interest on the Loans or Liquidity Fees when due;
(bc) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) or (b) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(cd) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(de) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request Request, or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (de) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(ef) The Program AgentLender, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(fg) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(gh) A Servicer Default shall occur (other than pursuant to clause (g) of the definition thereof);
(i) A “Purchase Termination Event” shall occur under (and as defined in) the Purchase Agreement;
(j) A Level Two Trigger Event shall occur;
(k) At any time, the Net Worth of the DT Entities On A Consolidated Basis shall be less than $325,000,000, plus 50% of positive net income earned after December 31, 2009;
(l) As of any Quarterly Measurement Date, the Leverage Ratio shall be greater than 5.0:1.0;
(m) As of the last day of any Accounting Period, Available Cash shall be less than $15,000,000;
(n) As of the close of business on any date and after giving effect to any increases or reductions to the Outstanding Loan Amount on such date, (i) any Revolving Borrowing Base Deficiency shall exist and such Revolving Borrowing Base Deficiency shall continue unremedied for two (2) Business Days or (ii) any Term Borrowing Base Deficiency shall exist and such Term Borrowing Base Deficiency shall continue unremedied for three (3) Business Days, or (iii) the Outstanding Loan Amount exceeds the Facility Limit and such excess shall continue unremedied for two (2) Business Days or (iv) the Outstanding Revolving Loan Amount exceeds the Facility Limit (Revolving Loans) and such excess shall continue unremedied for two (2) Business Days or (v) the Outstanding Term Loan Amount exceeds the Facility Limit (Term Loans) and such excess shall continue unremedied for two (2) Business Days;
(i) The Borrower shall fail to make any payment in respect of any Indebtedness in an aggregate principal amount exceeding $25,000 when and as the same shall become due and payable or (ii) an event of default shall have occurred and be continuing under an agreement, or related agreements, under which the Borrower has outstanding Indebtedness or (ii) (A) any DT Entity (other than the Borrower) shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Indebtedness with a principal amount in excess of $1,000,000, when and as the same shall become due and payable (subject to any applicable grace period) or (B) any event or condition occurs and, while continuing, results in any Indebtedness of a DT Entity (other than the Borrower) with a principal amount in excess of $1,000,000 becoming due prior to its scheduled maturity or that enables or permits (subject to any applicable grace period) 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 (iii) any creditor of a DT Entity takes any action against its collateral;
(i) One or more final judgments, decrees or orders for the payment of money shall be rendered against the Borrower in the aggregate amount of $25,000 or more (other than (x) a judgment which is fully discharged within 30 days after its entry, or (y) a judgment, the execution of which is effectively stayed within 30 days after its entry but only for 30 days after the date on which such stay is terminated or expires) or (ii) one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 and not covered by insurance shall be rendered against any DT Entity, any Subsidiary of any DT Entity (other than the Borrower) or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, vacated or bonded pending appeal, or any action shall be legally taken by a judgment creditor to attach or levy upon material assets of any DT Entity or any Subsidiary of any DT Entity (other than the Borrower) to enforce one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000;
(i) Any of this Agreement, the Purchase Agreement or any other Facility Document shall cease to be in full force and effect (other than in accordance with its terms) or any of the Borrower, the Originator, the Servicer or any Performance Guarantor shall so assert in writing or otherwise seek to terminate or disaffirm its obligations under any such Facility Document at any time following the execution thereof;
(r) A Change of Control shall have occurred;
(s) Any Person shall engage in any Prohibited Transaction involving any Plan, (ii) any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any DT Entity or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Lender, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any DT Entity or any Commonly Controlled Entity shall, or in the reasonable opinion of the Lender is likely to, incur any liability in connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to result in a Material Adverse Change;
(t) Any Transaction Party receives notice or becomes aware that a notice of federal tax lien has been filed against any Transaction Party;
(u) A Material Adverse Change shall occur;
(v) Any DT Entity shall pay any bonus or make any Restricted Payment (other than a Permitted Distribution) to Xxxxxx X. Xxxxxx XX without the Lender’s prior approval in its sole discretion; or
(i) Any representation or warranty made or deemed made by Xxxxxx X. Xxxxxx XX or Verde Investments, Inc. in the Demand Note Guaranty shall be false or incorrect; (ii) Xxxxxx X. Xxxxxx XX or Verde Investments, Inc. shall fail to perform or observe any term, covenant or agreement contained in the Demand Note Guaranty and such failure shall continue unremedied for three (3) Business Days or (iii) the Demand Note Guaranty shall cease to be in full force and effect (other than in accordance with its terms or in accordance with Section 2.16(e)) or Xxxxxx X. Xxxxxx XX or Verde Investments, Inc. shall so assert in writing or otherwise seek to terminate or disaffirm his or its obligations under the Demand Note Guaranty at any time following the execution thereof.
(x) As of the last day of any Accounting Period, Available Liquidity shall be less than $20,000,000.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Any of: (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or either Borrower; (y) of Interest on the Loans Originator or Liquidity Fees when due;
(bz) The Borrower, the Originator, the Servicer (if the Originator or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in under this Agreement or any (other Facility Document on its part than as referred to be performed or observed in clause (ii) of this subsection (a)) and any such failure shall remain unremedied for five (5) three Business Days after the receipt of notice or actual knowledge thereof or (ii) shall fail to make when due any Affected Party gives notice thereof payment or deposit to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;be made by it under this Agreement; or
(db) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer Originator (or any Performance Guarantor of its officers) under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Originator pursuant hereto) to this Agreement shall prove to have been materially false incorrect or incorrect (except that the materiality standard untrue in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;; or
(c) Any member of the IKON Group or any Subsidiary thereof shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $10,000,000 in the aggregate when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof; or
(d) Any member of the IKON Group or any Subsidiary thereof 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 any such member or Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation or, 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 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 any such member or Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (d); or
(e) The Program AgentA Trigger Event (excluding for these purposes Trigger Events (c) (only in so far as it relates to the Lender and excluding representation (g)), on behalf (d) (except in so far as it relates to paragraph (n) of Exhibit IV to the Asset Backed Loan Agreement) and (j) (in so far as it relates to any material adverse change in the business, operations, property or financial or other condition, taken as a whole, of the Secured Parties, Lender) and (n)) shall cease to have a valid and perfected first priority security interest in occurred under the Pledged Contracts and Collections with respect thereto or any other Collateral;Asset Backed Loan Agreement; or
(f) An Event There shall have occurred any material adverse change in the financial condition or operations taken as a whole of Bankruptcy the Originator since 30 September 2000; or there shall occur with respect have occurred any event which may materially adversely affect the collectability of the Funded Receivables or the ability of the Originator to any Transaction Party;collect Funded Receivables or otherwise perform its obligations under this Agreement; or
(g) A Servicer Default Either Borrower shall cease to be owned directly or indirectly by the Parent; then, and in any such event, the Lender may (with the consent of the Funding Agent), by notice to the Borrowers, take any of the following actions: (w) declare the Facility Termination Date to have occurred, (x) without limiting any right under this Agreement to replace the Servicer, designate another Person to succeed the Originator as Servicer, (y) declare the Advances to be immediately due and payable (whereupon the same shall become so payable together with accrued interest thereon and any other sums then owed by the Borrowers hereunder) or declare the Advances to be due and payable on demand of the Lender; and/or (z) declare that the Commitment shall be cancelled, whereupon the same shall be cancelled and reduced to zero; and/or (aa) require (which requirement shall be binding on the Borrowers) such changes (if any) to the arrangements relating to the servicing and collection of Funded Receivables, and the application of Collections in accordance with the provisions hereof, as may from time to time be specified by the Lender; and provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (d) of this Section 7.01, the Facility Termination Date shall occur;, the Originator (if it is then servicing as the Servicer) shall cease to be the Servicer, and the Lender (or its assignees or designees) shall become the Servicer and the Advances shall become immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Lender shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Servicer (xi) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) or (iii) of this subsection (a)) and such failure, if capable of being cured, shall remain unremedied for thirty (30) days, (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure, in the case of payments on account of Yield or Fees only, shall remain unremedied for three Business Days or (iii) shall fail to deliver any Borrower Report, Weekly Report, Payment Direction or Daily Report when required and such failure shall remain unremedied for 72 two Business Days (provided, that the grace period in this clause (iii) may not be utilized more than three times in any Month);
(b) The Borrower shall fail to make when due any payment or deposit to be made by it under this Agreement (including the payment of any Deemed Collections pursuant to Section 2.03(a)) and, in the case of payments on account of Yield or Fees only, such failure shall remain unremedied for three Business Days;
(c) Any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and either (i) immediately following the removal of such Receivables from the Net Receivables Pool Balance the Facility Principal (less the amount of Cure Funds then in the Cure Account) is not greater than the Borrowing Base or (ii) the Borrower shall have made any required payment of Deemed Collections in accordance with Section 2.03(a) with respect to such Receivables) made or deemed made by the Borrower, the Parent, any Originator, SPE I or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by the Borrower, the Parent, any Originator, SPE I or the Servicer pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered;
(d) The Borrower, SPE I or any Originator shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(j) or 5.01(p) and such failure shall remain unremedied for 15 days or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document (other than as specified in clauses (a) through (c) above) on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer 30 days, provided, that failure of the BorrowerBorrower to perform or observe any covenant contained in (i) Sections 5.01(b), the Originator5.01(d), the Servicer 5.01(g), 5.01(h), 5.01(l), 5.01(m), 5.01(n) or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d5.01(o) shall not apply be entitled to any the benefit of such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered30-day period;
(e) The Program AgentBorrower, the Parent, the Servicer, SPE I or any Originator shall fail to pay any principal of or premium or interest on behalf any of its Debt which is outstanding in a principal amount of at least $10,000 in the aggregate in the case of the Secured PartiesBorrower or SPE I and $17,500,000 in the aggregate in the case of Parent, the Servicer or any Originator when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof;
(f) The security interest created pursuant to Section 2.11 or Section 2.16(b) shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto Collateral or the Cash Collateral, as the case may be, or there shall exist any other Adverse Claims on the Collateral or the Cash Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default The Borrower, the Parent, the Servicer, SPE I or any Originator 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 Borrower, the Parent, the Servicer, SPE I or any 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, 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, 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 any proceeding or petition shall be instituted or adopted for the winding up of the Borrower or SPE I (whether or not in the context of a bankruptcy or insolvency proceeding); or the Borrower, the Parent, the Servicer, any SPE I or any Originator shall take any corporate or other action to authorize any of the actions set forth above in this subsection (g);
(h) As of the last day of any Month, (i) the average of the Default Ratios for such Month and the last two immediately preceding Months shall exceed 5.00%, (ii) the average of the Delinquency Ratios for such Month and the last two immediately preceding Months shall exceed 6.25%, (iii) the average of the Dilution Ratios for such Month and the last two immediately preceding Months shall exceed 7.00% or (iv) the average of the Loss-to-Liquidation Ratios for such Month and the last two immediately preceding Months shall exceed 1.00%;
(i) The Facility Principal (less the amount of Cure Funds then in the Cure Account) shall be greater than the Borrowing Base upon the termination of a Cure Period;
(j) There shall have occurred any event which in the reasonable discretion of the Program Agent may materially adversely affect (i) the collectibility of the Receivables, (ii) the legality, validity or enforceability of any Transaction Document, or (iii) the ability of the Borrower, the Parent, any Originator or the Servicer to collect the Receivables or otherwise perform its obligations under this Agreement and the other Transaction Documents;
Appears in 1 contract
Samples: Receivables Financing Agreement (Hayes Lemmerz International Inc)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower shall fail to make any payment Collection Agent (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (if other than as described in clause the Agent or its designee) (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.01(a)) and such failure shall remain unremedied for three Business Days or (ii) shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) The Seller or the Originator shall fail (i) to transfer to the Agent when requested by the Agent any rights pursuant to this Agreement which it has as Collection Agent, (ii) to perform or observe any term, covenant or agreement contained in Section 5.03(e) or Section 6.03(a), (iii) to make any payment required under Section 10.01 or (iv) to turn over to the Collection Agent the amounts referred to in Sections 2.06(e)(i) and (ii); or
(c) Any representation or warranty made or deemed made by the Seller or the Collection Agent (or any of their respective officers) under or in connection with this Agreement, any other Transaction Document, any Seller Report or any other information or report delivered by the Seller or the Collection Agent pursuant hereto or any Transaction Document shall prove to have been incorrect in any material respect when made or deemed made or delivered; or
(d) The Seller or the Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, Seller or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made Originator by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Agent; or
(e) The Program Agent, Seller or the Originator shall fail to pay the principal of or interest on behalf any obligation of the Secured PartiesSeller or the Originator for borrowed money in an outstanding amount of $10,000,000 or more when due, whether by acceleration, by required prepayment or otherwise, for a period longer than any period of grace provided in such obligation, or fail to perform any other term, condition or covenant contained in any such obligation, the effect of which is to cause, or to permit the holder of such obligation or others on its behalf to cause, such obligation then to become due prior to its stated maturity, unless such failure shall have been cured or effectively waived; or
(f) Any Purchase of a Receivable Interest pursuant hereto or any reinvestment shall for any reason, except to the extent permitted by the terms hereof, cease to have create a valid and perfected first priority undivided percentage ownership interest to the extent of such Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with respect thereto; or this Agreement shall for any reason cease to evidence the transfer to the owner thereof of legal and equitable title to, and ownership of, an undivided percentage ownership interest in Pool Receivables and Related Security to the extent of the applicable Receivable Interest; or the security interest created pursuant to Section 2.10 shall for any reason cease to be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto collateral security referred to in that section; or
(i) The 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 any proceeding shall be instituted by or against the Originator or any of its Significant Subsidiaries 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, or other Collateral;similar official for it or for any substantial part of its property and, if instituted against the Originator or any of its Significant Subsidiaries, either such proceeding shall not be stayed or dismissed for 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against it 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 (ii) the Originator or any of its Significant Subsidiaries shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (g); or
(fh) An Event of Bankruptcy The Delinquency Ratio shall occur with respect to at any Transaction Party;time exceed 7%, the Default Ratio shall at any time exceed 8% or the Loss-To-Liquidation Ratio shall at any time exceed 2%; or
(gi) A Servicer Default The Net Receivables Pool Balance shall occur;at any time be less than 105% of the sum of Capital, Yield Reserve, Collection Agent Fee Reserve and Loss and Dilution Reserve for all Receivable Interests at such time and such condition shall continue for three Business Days after the Seller shall become aware of such condition; or
(j) There shall have occurred any event which may materially adversely affect the ability of the Seller or the Originator to perform its obligations under this Agreement or the collectibility of the Pool Receivables; or
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Events of Termination. If The Forbearance Period shall automatically terminate immediately upon the occurrence of any of the following events (each, an “Event of Termination”) shall occur:):
(a) The the failure of any Borrower to comply with any term, condition or covenant expressly set forth in this Agreement, including, without limitation, the covenants in Section IV of this Agreement, unless (a) the Requisite Lenders, in their sole discretion, grant a cure period for compliance with such term, condition or covenant (including via e-mail) (in which case the Forbearance Period shall fail to make any payment (x) of principal in respect terminate if the applicable Borrower does not comply by the expiration of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of fundscure period) or (yb) of Interest on the Loans or Liquidity Fees when dueBorrowers’ failure to comply is otherwise waived by the Requisite Lenders (including via e-mail);
(b) The Borrowerthe occurrence of an “Event of Default” under the Credit Agreement, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Daysthe Forbearance Defaults;
(c) The Borrower, the Originator, the Servicer Operating Partnership or any Performance Guarantor shall fail of its Subsidiaries or other affiliates pay any interest relating to perform or observe any termthe 5.950% Notes due 2024 issued pursuant to the Indenture (the “Notes”), covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed regardless whether then due and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofowing;
(d) Any the occurrence of any “Event of Default” under any of the Other Debt Documents (in each case as such terms (or any comparable terms) are defined in such Other Debt Documents, as applicable), in each case that is not subject to a forbearance under the Other Forbearance Agreements;
(e) a breach by the Borrowers, WPG (as defined below), or any of their Subsidiaries or Affiliates of any covenant or other provision of any forbearance agreement entered into in connection with any of the Forbearance Defaults (or related cross-defaults) under the Other Debt Documents (the “Other Forbearance Agreements”) or the termination of the forbearance period under any of the Other Forbearance Agreements;
(f) any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or contained in connection with this Agreement or shall be incorrect in any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except material respect as of the date hereof; provided that the materiality standard in this clause (d) shall not apply to if any such representation or warranty that is qualified by or subject to a materiality standard by its terms) when made qualification, such representation or deemed made or delivered;
(e) The Program Agent, on behalf of the Secured Parties, warranty shall cease to have a valid be true and perfected first priority security interest correct in the Pledged Contracts and Collections with respect thereto or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Partyall respects;
(g) A Servicer Default shall occur;the enforcement of any rights or remedies under: (i) any of the Other Debt Documents and/or (ii) any of the Other Forbearance Agreements; and/or
(h) entry into any restructuring support agreement, debtor-in-possession financing, plan of reorganization or similar agreement by the Borrowers, WPG or any of their Subsidiaries or Affiliates, in each case without the consent of the Requisite Lenders, acting in their sole discretion.
Appears in 1 contract
Samples: Forbearance Agreement (Washington Prime Group, L.P.)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occur:
(ai) The Borrower shall fail to make any payment Servicer (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (if other than as described in clause (athe Deal Agent) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.01(a)) and such failure shall remain unremedied for two Business Days after written notice to Servicer and Seller or (ii) either the Servicer (if other than the Deal Agent) or the Seller shall fail to make any payment or deposit to be made by it hereunder when due; or
(i) Any representation or warranty made or deemed to be made by the Seller (or any of its officers or agents) under or in connection with this Agreement or any Asset Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made or (ii) any representation or warranty made or deemed to be made by OutSource International, any Originator or the Servicer (or any of their respective officers or agents) under or in connection with the Originator Sale Agreement or this Agreement (as the case may be) shall prove to have been false or incorrect in any material respect when made; or
(c) Either the Seller, OutSource International or any Originator (individually or in its capacity as Servicer) shall fail to perform or observe any term, covenant or agreement (other than any term covenant, or agreement described in either of clauses (a) or (b) above) contained in this Agreement or any other Facility Document in the Originator Sale Agreement on its part to be performed or observed and any such failure shall remain unremedied for five two (52) Business Days after any Affected Party gives written notice thereof shall have been given by the Deal Agent to a Responsible Officer the Seller; or
(i) The Seller, OutSource International or any Originator shall fail to pay any principal of or premium or interest on any Debt, if, in the Borrower, the case of OutSource International or any Originator, the Servicer aggregate principal amount of such Debt is $500,000 or more, when the same becomes due and payable (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 Debt; or (ii) any other default or any Performance Guarantorevent which, as applicablewith the passage of time or the giving of notice, or the Borrowerboth, the Originator, the Servicer would constitute a default under any agreement or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply instrument relating to any such representation Debt, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or warranty that instrument; provided, however, that, if such default arises solely under the Revolving Credit Agreement and the lenders thereunder have waived or rescinded such event, such event shall not constitute an "Event of Termination" hereunder; or (iii) any Debt of the Seller, OutSource International or any Originator, if, in the case of OutSource International or any Originator the aggregate principal amount of such Debt is qualified $500,000 or more, shall be declared to be due and payable or required to be prepaid (other than by a materiality standard by its termsregularly scheduled required prepayment) when made or deemed made or delivered;prior to the stated maturity thereof; or
(e) The Program AgentEither (i) any Purchase, on behalf Capital Increase or remittance of Collections shall for any reason, except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create a valid and perfected first priority undivided percentage ownership or security interest in each Purchased Receivable and the Pledged Contracts Related Security and Collections with respect thereto or (ii) any other Collateral;purchase by the Seller of a Receivable from the Originator shall, for any reason, cease to create in favor of the Seller a valid and perfected first priority ownership or security interest in each Purchased Receivable and the Related Security and Collections with respect thereto; or
(fi) An Event The Seller, OutSource International, any Originator or any of Bankruptcy their respective Affiliates shall occur with respect 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 Transaction Party;proceeding shall be instituted by or against the Seller, OutSource International or any Originator 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, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against (but not by) OutSource International or any Originator, either such proceeding shall have remained undismissed or unstayed for a period of 60 days or any order for relief of the sort described above shall have been entered; or (ii) the Seller, OutSource International or any Originator shall take any corporate action to authorize any of the actions set forth in clause (i) above in this Section 7.01(f); or
(g) the Default Ratio for any Collection Period shall exceed 5.0%, or the Delinquency Ratio for any Collection Period shall exceed 8.0%, or the Dilution Ratio for any Collection Period shall exceed 4.0%; or
(i) There shall have occurred and be continuing an "Event of Termination" under the Originator Sale Agreement, or (ii) the Originator Sale Agreement shall have ceased to be valid, binding and enforceable as against any of the parties thereto without any amendment, modification, waiver or termination of any terms or conditions thereof, other than as agreed to in writing by the Deal Agent, or (iii) the Originators shall have ceased for any reason to sell all of the "Receivables" under and as defined in the Originator Sale Agreement to the Seller pursuant to the Originator Sale Agreement, or (iv) the assignment to the Deal Agent of all of the Seller's right and title to and interest in the Originator Sale Agreement shall have ceased, for any reason, to be fully effective and enforceable by the Deal Agent as against any of the parties of the Originator Sale Agreement; or
(i) OutSource International shall cease to own (whether directly or indirectly) 100% of the issued and outstanding stock of the Seller; or
(j) The Seller shall fail to make payment as specified in Section 2.05(b) and such failure shall remain unremedied for two Business Days after written notice thereof shall have been given by the Deal Agent to the Seller; or
(k) A Servicer Default Termination Event shall occur;have occurred and be continuing; or
(l) The date on which some or all of the "Liquidity Commitments" under the Liquidity Agreement shall cease to be effective or shall terminate without renewal or such "Liquidity Commitments" shall ever be less than 102% of the Purchase Limit; or
(m) Any Originator, the Seller or the Servicer shall fail to perform or observe any material term, covenant or agreement contained in the Credit and Collection Policy and such failure shall remain unremedied for two Business Days after written notice to Servicer and Seller; or
(n) A Coverage Shortfall Event shall exist and such Coverage Shortfall Event shall remain unremedied for two Business Days, or the Purchased Interest shall exceed 100% and such condition shall remain unremedied for two Business Days; or
(o) The IRS or the PBGC shall have filed notice of one or more Adverse Claims against any Originator, the Seller or any ERISA Affiliate under ERISA or the Code, unless such Adverse Claim does not purport to cover the Receivables, and such notice shall have remained in effect for more than thirty (30) Business Days unless, prior to the expiration of such period, such Adverse Claims shall have been adequately bonded by such Originator, Seller or the ERISA Affiliate (as the case may be) in a transaction with respect to which the Deal Agent has given its prior written approval; or
(p) The Seller shall have become subject to registration as an "investment company" within the meaning of the Investment Company Act; or
(q) The Deal Agent shall have received an "Enforcement Notice" under the Intercreditor Agreement; or
(r) The Revolving Credit Agreement shall cease to be in full force and effect; then, and in any such event, the Deal Agent may, by notice to the Seller declare the Termination Date to have occurred, except that, in the case of any event described in Section 7.01(l) or (p), or in clause (i) of Section 7.01(f) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, the Deal Agent and the Purchaser shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Outsource International Inc)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(ai) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The BorrowerSeller, the Originator, Facility Custodian or the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Originator shall fail to perform or observe any term, covenant or agreement contained under any Transaction Document (other than as referred to in this Agreement clauses (ii) or any other Facility Document on its part to be performed or observed (iii) below) and any such failure shall remain unremedied for five ten Business Days, (5ii) Business Days after the Seller, the Facility Custodian or the Originator shall fail to make any Affected Party gives notice thereof payment or deposit to a Responsible Officer be made by it under and Transaction Document when due with respect to the payment of the BorrowerCapital of the Asset Interests or any Yield or Fees or (iii) the Seller, the Originator, the Servicer or any Performance Guarantor, as applicable, Facility Custodian or the Borrower, the Originator, the Servicer Originator shall fail to make any other payment or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofdeposit to be made by it hereunder when due and such failure shall remain unremedied for two Business Days;
(db) Any representation or warranty made or deemed to be made by the BorrowerSeller, the Originator, Facility Custodian or the Servicer Originator (or any Performance Guarantor of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document (including or any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller, the Facility Custodian or the Originator pursuant hereto) to this Agreement or any other Transaction Document shall prove to have been materially false incorrect or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) untrue when made or deemed made or delivereddelivered and, solely in the case of any representation or warranty which relates solely to one or more Assets incorrectly characterized as Eligible Assets, the Seller shall have failed to make any payment in respect of any Deemed Collection resulting therefrom pursuant to Section 2.04(a);
(c) The Seller, the Facility Custodian or the Originator shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding (and in a principal amount of at least $70,000,000 in the aggregate in the case of the Originator or the Facility Custodian), when the same becomes due and payable (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 Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof;
(d) The Seller, the Facility Custodian or the Originator 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, the Facility Custodian or the 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 COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT 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 the Originator (but not instituted by it), such proceeding shall remain undismissed or unstayed for a period of 60 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 any proceeding or petition shall be instituted or adopted for the winding up of the Seller, the Facility Custodian or the Originator (whether or not in the context of a bankruptcy or insolvency proceeding); or the Seller, the Facility Custodian or the Originator shall take any corporate or other action to authorize any of the actions set forth above in this subsection (d);
(e) The Program AgentPBGC or the Internal Revenue Service shall, on behalf or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA or Section 6320 of the Secured PartiesCode with regard to the assets of the Parent, the Seller, the Facility Custodian or the Originator;
(f) Any Transaction Document shall cease to be in full force and effect, or the Seller, the Servicer or the Originator shall attempt to terminate or assert the invalidity or unenforceability of any Transaction Document or any provision thereof;
(g) A Change in Control shall occur;
(h) There shall have occurred any event which in the reasonable discretion of the Program Agent may materially adversely affect (i) the collectibility, value or marketability of the Pool Assets or the Underlying Collateral with respect thereto, (ii) the legality, validity or enforceability of any Transaction Document or CNB Customer Transaction Document or (iii) the ability of the Seller, the Facility Custodian, the Originator or the Servicer to collect the Pool Assets or the Underlying Collateral with respect thereto, or otherwise perform their obligations under this Agreement and the other Transaction Documents or the CNB Customer Transaction Documents;
(i) One or more judgments for the payment of money in an aggregate amount in excess of $70,000,000 (except to the extent covered by insurance as to which the insurer has acknowledged such coverage in writing) shall be rendered against the Originator the Servicer, the Facility Custodian or any of their Subsidiaries (other than the Seller) or a combination thereof, and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be taken by a judgment creditor to attach or levy upon any assets of the Originator, the Facility Custodian or the Servicer or any of their respective Subsidiaries (other than the Seller) to enforce any such judgment;
(j) One or more judgments for the payment of money shall be rendered against the Seller or any action shall be taken by a judgment creditor to attach or levy upon any assets of the Seller;
(i) A Servicer Default shall occur or (ii) Colonial Bank shall resign or cease to perform as Servicer hereunder (other than solely as a result of its termination or replacement by the Program Agent in accordance with Article VI); COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
(l) The Originator shall breach any of the material provisions of the Sale Agreement or an “Event of Termination” shall occur under the Sale Agreement;
(m) The Originator shall for any reason cease to sell or contribute to the Seller pursuant to the Sale Agreement, all newly arising or acquired Assets with respect to all Designated CNB Customers;
(n) An Asset Interest Excess shall occur and remain unremedied for two Business Days;
(o) Any Monthly Report or Asset Interest Report shall not be delivered when due and such failure shall continue for two Business Days;
(p) As of the last day of any Month, the Asset Turnover Days for such Month shall exceed 75 days; or
(q) The security interest created pursuant to Section 2.11 shall for any reason cease to be a valid and perfected first priority security interest in the Pledged Contracts Collateral or there shall exist any Adverse Claims on the Collateral; then, and Collections with respect thereto in any such event, any or all of the following actions may be taken by notice to the Seller: (1) the Program Agent may in its discretion, and shall, at the direction of the Group Agents, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), (2) the Program Agent may in its discretion, and shall, at the direction of any Group Agent, declare the Commitment Termination Date to have occurred (in which case the Commitment Termination Date shall be deemed to have occurred), (3) without limiting any other Collateral;
right under this Agreement or the Custodial Agreement to replace the Facility Custodian, the Program Agent may in its discretion, and shall, at the direction of the Required Committed Purchasers, designate another Person to succeed the then current Facility Custodian as the Facility Custodian and (f4) An Event if such event is a Servicer Default, and without limiting any other right under this Agreement to replace the Servicer, the Program Agent may in its discretion, and shall, at the direction of Bankruptcy shall occur with respect the Required Committed Purchasers, designate another Person to succeed the then current Servicer as the Servicer; provided, that, automatically upon the occurrence of any Transaction Party;
event (gwithout any requirement for the passage of time or the giving of notice) A Servicer Default described in Section 7.01(d), the Facility Termination Date and the Commitment Termination Date shall occur;, Colonial Bank (if it is then serving as the Facility Custodian) shall cease to be the Facility Custodian, and the Program Agent or its designee shall appoint another Person to act as Facility Custodian, and Colonial Bank (if it is then serving as the Servicer) shall cease to be the Servicer, and the Program Agent or its designee shall become the Servicer. Upon any such declaration or designation or upon such automatic termination, the Conduit Purchasers, the Group Agents, the Committed Purchasers and the Program Agent shall have, in addition to the rights and remedies which they 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. COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
Appears in 1 contract
Samples: Warehouse Loan Purchase Agreement (Colonial Bancgroup Inc)
Events of Termination. If An Event of Termination shall mean the occurrence of any one or more of the following events (each, each an “Event of Termination”) shall occur:):
(a) The Borrower shall fail any Event of Default (as defined in any Loan Document) occurs for a failure to make a payment of principal, interest, fees or premiums on any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees Obligations when due;
(b) The Borrower, the Originator, failure of the Servicer or any Performance Guarantor shall fail Borrower to make any payment to the Agent or deposit any Lender when and as required to be made by it hereunder (other than as described in clause (a) above) the Loan Agreement, this Forbearance Agreement or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business DaysLoan Document;
(c) The Borrower, the Originator, the Servicer untruth of any representation or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement warranty contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicableForbearance Agreement, or the Borrowerexistence of a misrepresentation of fact or fraud contained in any certificate, document or information heretofore or hereafter submitted or communicated (with the Originator, exception of the Servicer Existing Default) to the Agent or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofthe Lenders pursuant to or in support of this Forbearance Agreement;
(d) Any representation breach or warranty made violation of any term, covenant, agreement, obligation or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard condition contained in this clause Forbearance Agreement (the occurrence of an event described in this item (d) or the occurrence of an event described in any of items (a), (b) or (c) above shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or deliveredconstitute an “Event of Funding Termination” for purposes of Section 4 of this Forbearance Agreement);
(e) The Program Agent, on behalf any other creditor or holder of any Debt of the Secured Parties, shall cease Borrower or institutes or commences any action against it to have a valid and perfected first priority security interest collect any Debt or obligation exceeding $250,000 (or the Borrower confesses judgment in the Pledged Contracts and Collections with respect thereto favor of any such creditor or holder for such amount) or takes any other Collateralaction to realize upon any collateral securing such Debt or obligation;
(f) An Event of Bankruptcy The Commitment Letter shall occur with respect cease to any Transaction Partybe in full force and effect, or cease to be in form and substance acceptable to Agent and Lenders, in their sole and absolute reasonable discretion;
(g) A Servicer Default The Merger Agreement, Schedule TO or the Schedule 14D-9 shall occurcease to be in full force and effect after the execution and/or filing thereof;
(h) The commencement of litigation or legal proceedings by the Borrower or any Subsidiary against the Agent, Lenders or any of their affiliates in respect of the Loan Documents;
(i) The initiation of any federal or state bankruptcy, insolvency or similar proceeding by or against the Borrower or any Subsidiary.
Appears in 1 contract
Events of Termination. If any of the following events --------------------- (each, an “Event "Events of Termination”") shall occur:occur and be continuing: -----------------------
(a) The Borrower shall fail to make any payment Servicer (x) of principal in respect of if the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer Parent or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder of its Affiliates) (other than as described in clause (ai) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this subsection (a)) and such failure shall remain unremedied for ten Business Days or (ii) shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall remain unremedied for five Business Days; or
(b) Any Seller shall fail (i) to transfer to the Purchaser when requested any rights, pursuant to this Agreement, which the Seller then has as Servicer, or (ii) to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for five Business Days; or
(c) Any representation or warranty made or deemed made by a Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by such Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) Any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days 10 days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made such Seller by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Purchaser; or
(e) The Program Agent, Any Seller or any of its subsidiaries shall fail to pay any principal of or premium or interest on behalf any of the Secured Parties, shall cease to have its Indebtedness which is outstanding in a valid and perfected first priority security interest principal amount of at least $5,000,000 in the Pledged Contracts aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and [Purchase and Contribution Agreement] such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto or shall for any other Collateral;
(f) An Event reason cease to constitute valid and perfected ownership of Bankruptcy shall occur with respect to such Receivables, Related Security and Collections free and clear of any Transaction Party;Lien; or
(g) A Servicer Default Any Seller or any of its subsidiaries shall generally not pay its Indebtedness as such Indebtedness become due, or shall admit in writing its inability to pay its Indebtedness generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Seller or any of its subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its Indebtedness 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, 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 Seller or any of its subsidiaries/*/ shall take any corporate action to authorize any of the actions set forth above in this subsection (g); or
(h) A Pay-Out Event or Series 1996-1 Pay-Out Event shall have occurred under the Pooling and Servicing Agreement;
(i) As of the last day of any calendar week, the aggregate Purchase Price paid by the Purchaser for such week shall be less than the Minimum Return. then, and in any such event, the Purchaser may, by notice to the Parent, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the [Purchase and Contribution Agreement] Facility Termination Date shall be deemed to have occurred) and (y) without limiting any right under this Agreement to replace the Servicer, designate another Person to succeed the Parent as Servicer; provided, that, automatically -------- upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur, the Parent (if it is then serving as the Servicer) shall cease to be the Servicer, and the Purchaser (or its assigns or designees) shall become the Servicer. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Mail Well Inc)
Events of Termination. If The Second Supplemental Forbearance Period shall automatically terminate if any of the following events shall occur (each, an “Event of Termination”) shall occur:):
(a) The Borrower shall fail the failure of any Obligor to make comply with any payment term, condition or covenant set forth in this Agreement, including, without limitation, the covenants in Section IV of this Agreement, unless (xa) holders of principal in respect a majority of the Loans when due principal amount of debt held by all Supporting Holders (whether at stated maturitythe “Requisite Supporting Holders”), upon acceleration in their sole discretion, grant a cure period for compliance with such term, condition or at mandatory prepayment covenant (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability in which case the Second Supplemental Forbearance Period shall terminate if the applicable Obligor does not comply by the expiration of fundsthe cure period granted by the Requisite Supporting Holders) or (yb) the Obligor’s failure to comply is otherwise waived by the Requisite Supporting Holders; provided that, notwithstanding the foregoing, the Obligors shall have three (3) business days to cure any default of Interest on the Loans or Liquidity Fees when due;covenants contained in Sections 4.05(c) and (f) herein after receiving notice of such default.
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) the Specified Default relating to the non-payment of the June 2017 Interest Payment, there occurs any Default or Event of Default under the Indenture that is not cured within any other Facility Document when due and such failure shall continue unremedied for three (3) Business Daysapplicable grace period;
(c) The Borrower, a case under title 11 of the Originator, the Servicer United States Code or any Performance Guarantor shall fail to perform or observe any termsimilar reorganization, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrowerliquidation, the Originator, the Servicer or any Performance Guarantor, as applicableinsolvency, or the Borrower, the Originator, the Servicer or receivership proceeding under applicable law is commenced by any Performance Guarantor, as applicable, otherwise obtains knowledge thereofObligor;
(d) Any representation the Company notifies any Supporting Holder or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except its representatives that the materiality standard in this clause (d) shall not apply to any such representation or warranty that it is qualified by terminating discussions regarding a materiality standard by its terms) when made or deemed made or delivered;Potential Transaction; or
(e) The Program Agentthe Company cures the Specified Default by making the June 2017 Interest Payment and pays any default interest or late penalties, on behalf of the Secured Parties, shall cease to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto no other Default or any other Collateral;
(f) An Event of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;has occurred and remains uncured at the time the Company cures such Specified Default.
Appears in 1 contract
Samples: Second Supplemental Forbearance Agreement (Armstrong Energy, Inc.)
Events of Termination. If any of the following events (each, each an “"Event of Termination”") shall occuroccur and be continuing:
(ai) The Borrower Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii) of this subsection (a)) and such failure shall remain unremedied for three Business Days after notice or (ii) any Transaction Party shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement or any other Transaction Document (other than as described in clause (a) aboveincluding, without limitation, any failure to make a deposit into the Cash Collateral Account when due) or (iii) the Servicer shall fail to maintain a Cash Collateral Account subject to a duly executed Cash Collateral Agreement as and when required pursuant to Section 6.07; or
(b) Any representation or warranty made or deemed made by any Transaction Party (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document or any certificate, report or other statement delivered by any Transaction Party pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when due and such failure shall continue unremedied for three (3) Business Days;made or deemed made or delivered; or
(ci) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(h) or Section 6.03(a), or (ii) the Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) ten Business Days after any Affected Party gives the first date on which the Seller receives written notice thereof to a Responsible Officer of from the Borrower, the Originator, the Servicer Agent; or
(i) Any Transaction Party or any Performance GuarantorConsolidated Subsidiary shall default beyond any applicable period of grace in any payment of principal or interest on any indebtedness for any borrowed money for which such Transaction Party or any Consolidated Subsidiary is liable in a principal amount then outstanding of $25,000,000 or more or (ii) any other event of default (other than a failure to pay principal or interest) shall occur under any mortgage, as applicableindenture, agreement or instrument under which there may be issued, or the Borrowerby which there may be secured or evidenced, the Originator, the Servicer any indebtedness for any borrowed money for which any Transaction Party or any Performance Guarantor, as applicable, Consolidated Subsidiary is liable in a principal amount then outstanding of $25,000,000 and either (A) the occurrence of such event shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise obtains knowledge thereof;
become due and payable or (dB) Any representation or warranty made or deemed the occurrence of such event shall permit the holders of such indebtedness to declare such indebtedness to be made by due and payable prior to the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;date on which it would otherwise become due and payable; or
(e) The Program AgentAny purchase or any reinvestment pursuant to this Agreement shall for any reason cease to create, on behalf or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority undivided percentage ownership or security interest to the extent of the Secured Parties, pertinent Receivable Interest in each Pool Receivable and the Related Security and Collections with respect thereto; or the security interest created pursuant to Section 2.10 shall for any reason cease to have be a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto or any other Collateral;collateral referred to in that Section; or
(f) An Event Any 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 Bankruptcy creditors; or any proceeding shall occur with respect to be instituted by or against any Transaction Party;Party 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 45 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 any Transaction Party shall take any corporate or other action to authorize any of the actions set forth above in this subsection (f); or
(g) A Servicer As of the last day of any calendar month, the Default Ratio shall occur;exceed 8.50%; or
(h) The sum of the Receivable Interests shall exceed the Maximum Receivable Interests for five consecutive Business Days; or
(i) There shall have occurred or shall exist any event or condition which has had or will have a Material Adverse Effect; or
Appears in 1 contract
Samples: Receivables Purchase Agreement (Northern Indiana Public Service Co)
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occuroccur and be continuing:
(a) The Borrower Collection Agent (if other than the Purchaser) (i) shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clause (ii), (iii) or (iv) of this subsection (a)) and such failure shall remain unremedied for three Business Days, (ii) shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder under this Agreement, (other than as described in clause (aiii) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 6.02(g), or (iv) shall fail to deliver any Seller Report when due and such failure shall remain unremedied for more than one Business Day; or
(b) Any Seller shall fail to make any payment required under Section 2.04(a) or 2.04(b) and such failure shall remain unremedied for two Business Days; or
(c) Any representation or warranty made or deemed made by any Seller, the Collection Agent or the Undertaking Party (or any of their respective officers) under or in connection with this Agreement or any other Facility Transaction Document delivered hereunder or any information or report delivered by any Seller, the Collection Agent or the Undertaking Party pursuant to this Agreement or any other Transaction Document delivered hereunder shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) Any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for five (5) 10 Business Days after any Affected Party gives written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made such Seller by the Borrower, the Originator, the Servicer Purchaser or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;assignees; or
(e) The Program Agent, on behalf Any event or condition shall occur which results in the acceleration of the Secured Partiesmaturity of any Material Debt of any Seller, IR Parent or Parent; or
(f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to have a constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim (it being agreed that any failure of any Underlying Inventory Security Interest to constitute a first priority security interest in the Pledged Contracts related inventory shall not, in and Collections with respect thereto of itself, constitute an Event of Termination under this clause (f)); or
(g) IR Parent, Parent, any Seller or the Collection Agent (if other than the Purchaser) 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 IR Parent, Parent, any Seller or the Collection Agent (if other Collateral;than the Purchaser) 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 IR Parent, Parent, any Seller or the Collection Agent (but not instituted by IR Parent, Parent, any Seller or the Collection Agent), either such proceeding shall remain undismissed or unstayed for a period of 60 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 IR Parent, Parent, any Seller or the Collection Agent (if other than the Purchaser) shall take any corporate or limited liability company action, as applicable, to authorize any of the actions set forth above in this subsection (g); or
(fh) An Event of Bankruptcy Termination shall occur have occurred under the Secondary Purchase Agreement or the RIPA; or
(i) There shall have occurred any event or circumstance which may materially adversely affect (i) the ability of any Seller, the Collection Agent or the Undertaking Party to perform its respective obligations under this Agreement or any other documents required to be delivered by any Seller, the Collection Agent or the Undertaking Party hereunder, (ii) the legality, validity or enforceability of this Agreement or any other documents required to be delivered by any Seller, the Collection Agent or the Undertaking Party hereunder or (iii) the collectibility of the Receivables taken as a whole; or
(i) The majority of the outstanding capital stock or other equity interests, including a majority of the outstanding capital stock or other equity interests having ordinary voting power in the election of directors, of any Seller shall cease to be owned, directly or indirectly, by Parent or (ii) Parent shall cease to have the power, directly or indirectly, to elect a majority of the directors of such Seller or (iii) all of the outstanding capital stock of Parent shall cease to be owned, directly or indirectly, by IR Parent; or
(k) The Undertaking shall cease to be in full force and effect, or the Undertaking Party shall fail to (i) make any payment required by the Undertaking and such failure shall remain unremedied for three Business Days, or (ii) perform or observe any other term, covenant or agreement contained in the Undertaking and any such failure shall remain unremedied for 10 Business Days after written notice thereof shall have been given to the Sellers by the Purchaser or its assignees; then, and in any such event, the Purchaser or its assignees may, by notice to the Sellers, take either or both of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y) if such Event of Termination is a Collection Agent Default (but subject, prior to the RIPA Final Payment Date, to the designation made under the RIPA), designate another Person to succeed IR Company as Collection Agent; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (g) of this Section 7.01, the Facility Termination Date shall occur. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to any Transaction Party;
(g) A Servicer Default the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall occur;be cumulative.
Appears in 1 contract
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower Seller or the Collection Agent (if the Seller or an Affiliate therof) shall fail (i) to make perform or observe any payment term, covenant or agreement hereunder (xother than as referred to in clause (ii) of principal in respect of the Loans when due this subsection (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(ba) or otherwisein Sections 5.01(c), 5.01(d), 5.01(j) or 5.01(p)) and without giving effect to availability of funds) such failure shall remain unremedied for three Business Days or (yii) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required hereunder on the first Business Day after the due date thereof; or
(b) The Seller shall fail to be made by it hereunder (other than transfer to the Purchasers when. requested any rights pursuant hereto which the Seller then has as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;Collection Agent; or
(c) The Borrower, Any representation or warranty made or deemed made by the Originator, the Servicer Seller (or any Performance Guarantor of its Responsible Officers) in this Agreement or by any Seller Subsidiary (or any of its Responsible Officers) in the Transfer Agreement or the Consent and Acknowledgement to which it is a party or in any information or report delivered by a Responsible Officer of the Seller or any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate thereof) pursuant hereto shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; or
(d) The Seller shall fail to perform or observe any term, covenant or agreement contained in this Agreement Sections 5.01(c) or 5.01(j) hereof or any other Facility Document term, covenant or agreement contained in any Transfer Agreement, or a Seller Subsidiary shall fail to perform or observe any term, covenant or agreement contained in the Consent and Acknowledgment or the Transfer Agreement to which such Seller Subsidiary is a party, on its part to be performed or observed and any such failure shall remain unremedied for five 15 days after the earlier of (5i) Business Days after any Affected Party gives the time the Seller or such Seller Subsidiary becomes aware or should have become aware of such failure and (ii) the date written notice thereof shall have been given to a Responsible Officer of the Borrower, the Originator, the Servicer Seller or any Performance Guarantorsuch Seller Subsidiary, as applicablethe case may be, by any Purchaser or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;Administrative Agent; or
(e) The Program AgentSeller or any Seller Subsidiary shall fail to pay when due any amount in respect of any Debt having a principal amount outstanding of at least $50,000,000 and such failure shall continue after any applicable grace period, on behalf or any other event shall occur or condition shall exist in respect of such Debt and shall continue after any applicable grace period, the Secured Parties, effect of which is to cause (or permit any holder thereof to cause) such Debt to become due and payable prior to the stated maturity thereof; or
(f) Any purchase or any reinvestment pursuant hereto shall for any reason (other than pursuant to the terms hereof) cease to have create, or any Receivable Interest shall for any reason cease to be, a valid and perfected first priority security undivided percentage ownership interest in Receivables to the Pledged Contracts extent of any Purchaser's Receivable Interest in each applicable Pool Receivable and the Related Security and Collections with.respect thereto or this Agreement shall for any reason cease to evidence the transfer to a Purchaser (or its assignees or transferees) of legal and equitable right, title and interest to, and ownership of, an undivided percentage ownership interest in any Pool Receivable to the extent of such Purchaser's Receivable Interest or the pertinent Certificate shall for any reason cease to evidence in any Purchaser legal and equitable title to, and ownership of, an undivided percentage ownership interest in such Receivable and the Related Security and Collection to the extent of the Receivable Interest of such Purchaser, except as may be limited by applicable law with respect to the Related Security and with respect to Pool Receivables of Government Obligors and Foreign Obligors; or
(g) Any purchase pursuant to any Transfer Agreement shall for any reason (other than pursuant to the term thereof) cease to create, or an interest in any Receivable shall cease to be, a valid and perfected first priority undivided percentage ownership interest in such Receivable and the Related Security and Collections with respect thereto or the Transfer Agreement shall for any other Collateral;
(f) An Event reason cease to evidence the transfer to the Seller of Bankruptcy shall occur all legal and equitable right, title and interest of the relevant Seller Subsidiary to, and ownership of, an undivided percentage ownership in any Receivable, except as may be limited by applicable law with respect to any Transaction Party;the Related Security and with respect to Receivables of Government Obligors and Foreign Obligors; or
(gh) A Servicer Default The Seller, any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate therof) 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, any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate therof) 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 45 days, or any of the actions sought in such proceeding (including 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 Seller or any Seller Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (h); or
(i) As of any Settlement Date, the Current Default Ratio shall exceed 5%, or the Delinquency Ratio shall exceed 10%, or the Loss-to-Liquidation Ratio shall exceed .35%; or
(j) There shall have occurred any material adverse change in the financial condition or operations of the Seller and its subsidiaries, taken as a whole, as they existed as of March 31, 1990; or there shall have occurred any event which has a reasonable likelihood of having a material adverse effect on the collectibility of the Pool Receivables generally or any significant portion of the Pool Receivables or the ability of the Seller, any Seller Subsidiary or the Collection Agent (if the Seller or an Affiliate thereof) to perform its duty to collect Pool Receivables generally or otherwise perform its respective obligations hereunder or under any Transfer Agreements or under any Consent and Acknowledgment; or
(k) The Internal Revenue Service shall file a notice of lien in an amount greater than $50 million pursuant to Section 6323 of the Code with regard to any of the assets of the Seller or any Seller Subsidiary, or the Pension Benefit Guaranty Corporation shall file a notice of lien in an amount greater than $50 million pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller or any Seller Subsidiary, and such liens have not been suspended or have not been bonded in the full amount thereof and are not being contested in good faith by the Seller or such Seller Subsidiary; or
(l) The Seller shall fail to maintain long-term senior unsecured debt ratings of at least B+ and B1 from S&P and Moody's, respectively; or
(m) There shall have occurred a change of control of the Seller or any Seller Subsidiary other than as expressly permitted by the provisions of Section 5.01(n) hereof; provided, however, that a change of control of a Seller Subsidiary shall not be an Event of Termination if after such change of control the Seller indirectly controls such Seller Subsidiary. A "change of control" shall mean the failure of the Seller to own directly or indirectly at least 50% of either the then outstanding common shares of the Seller or any Seller. Subsidiary or the combined voting rights of the then outstanding voting securities of the Seller or any Seller Subsidiary; or
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Events of Termination. If any of the The following events (each, an shall be “Event Events of Termination”) shall occur” hereunder:
(a) The Borrower Any of the following events:
(i) any Seller, Servicer, any Originator, or Sprint Corporation shall fail to make perform or observe any payment covenant or agreement as and when required hereunder or under any other Transaction Document (xother than any covenant or agreement referred to in clause (a)(ii) of principal in respect below) and such failure remains unremedied for thirty (30) days after the earlier of the Loans when due date (whether at stated maturityA) such Person receives notice of such failure from the Collateral Agent, upon acceleration the Administrative Agent or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) the Required Purchasers, or (yB) a Responsible Officer obtains actual knowledge of Interest on the Loans or Liquidity Fees when duesuch failure;
(bii) The Borrowerany of the following shall occur: any Seller, the OriginatorServicer, the Servicer any Originator or any Performance Guarantor Sprint Corporation shall fail to make any payment or deposit or transfer of monies required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Transaction Document (including, without limitation, any obligation of an Originator to pay the Lease Upgrade Payment Amount in accordance with the Sale Agreement) as and when due and such failure shall continue unremedied for is not remedied within three (3) Business Days after the earlier of the date (A) such Person receives notice of such failure from the Collateral Agent, the Administrative Agent, or any Purchaser Agent or (B) a Responsible Officer obtains actual knowledge of such failure;
(iii) the Servicer shall fail to deliver any Information Package when due pursuant to Section 3.1(a) and such failure is not remedied within two (2) Business Days;
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed to be made by the Borrowerany Seller, the Servicer, any Originator, the Servicer or any Performance Guarantor Sprint Corporation under or in connection with this Agreement or any other Facility Transaction Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect in any material respect when made or deemed to be made (except that the materiality standard in this clause (d) shall not apply without duplication as to any materiality modifiers, qualifications, or limitations applicable thereto) for a period of ten (10) days after the earlier of the date (i) such Person receives notice thereof from the Collateral Agent, the Administrative Agent or the Required Purchasers or (ii) a Responsible Officer obtains actual knowledge thereof (unless such representation or warranty that is qualified by relates solely to one or more specific Pool Receivables and Seller makes a materiality standard by its terms) when made or deemed made or deliveredDeemed Collection payment with respect to such Pool Receivable if and as required pursuant to Section 3.2(a));
(ec) an Event of Bankruptcy shall have occurred with respect to any Seller, the Servicer, any Originator, or Sprint Corporation;
(d) a Change of Control shall occur;
(a) The Program Collateral Agent, on behalf for the benefit of the Secured Affected Parties, shall cease fails at any time to have a valid and perfected ownership interest or first priority perfected security interest in the Pledged Contracts Pool Receivables, Lease Contracts, and Collections with respect thereto any Related Assets (or any portion thereof) and all identifiable cash proceeds of any of the foregoing, in each case, free and clear of any Adverse Claim (other Collateralthan any Permitted Adverse Claim) or (B) the Collateral Agent shall fail to have a valid first priority perfected security interest in each Lock-Box Account;
(f) An ERISA Event shall have occurred that is reasonably expected to result in a Material Adverse Effect; provided, however, that the occurrence of Bankruptcy any ERISA Event that results in or is reasonably expected to result in the imposition of a lien by the PBGC on the assets of any Seller shall occur with respect be considered as reasonably expected to any Transaction Party;result in a Material Adverse Effect.
(g) A Servicer Default any of Servicer, Sprint Corporation, any Seller, or any Originator, shall occurbe (i) required to register as an “investment company” or (ii) “controlled” by an “Investment Company”, in each case, under (and as defined in) the Investment Company Act;
(h) any material provision of this Agreement, the Sale Agreement, the Fee Letters, the Lock-Box Agreements, or the Performance Support Agreement shall cease to be the valid and binding obligation enforceable against the Servicer, Sprint Corporation, any Seller, or any Originator;
(i) any Seller shall fail to pay in full all of its Obligations to the Collateral Agent, the Administrative Agent, or any Purchaser hereunder on or prior to the Legal Final;
(j) one or more final judgments for the payment of money in an aggregate amount in excess of $250,000,000 (or, in the case of a judgment rendered against any Seller, individually, $15,325) shall be rendered against Sprint Corporation (or any Significant Subsidiary) and the same shall remain undischarged for a period of 60 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 Sprint Corporation (or any Significant Subsidiary) to enforce any such judgment; or
(k) the Performance Support Agreement is canceled, rescinded, amended, or modified without the prior written consent of the Collateral Agent, the Administrative Agent and each Purchaser Agent. An Event of Termination shall be deemed to be continuing until waived in writing by the Administrative Agent, the Collateral Agent and the Required Purchasers.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) two Business Days;; or
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days fifteen days after any Affected Party gives written notice thereof to a Responsible Officer of from the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Agent; or
(dc) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer Borrower (or any Performance Guarantor of its Designated Officers) under or in connection with this Agreement or any other Facility Document (including any Monthly ReportAgreement, any Monthly Serviced Portfolio Report, any Notice of Borrowing Base Certificate, any Borrowing Request or other information infor mation or report delivered pursuant hereto) hereto shall prove to have been materially false or incorrect in any material respect when made; provided, however, that (except that i) to the materiality standard in this clause (d) shall not apply to extent any breach of any such representation or warranty that is qualified may be cured within fifteen days, the Borrower shall have fifteen days after learning of such breach to make such representation and warranty true and correct and (ii) if such breach results from the failure of such Lease Receivable to be an Eligible Lease Receivable, then such breach may be cured by a materiality standard by its terms) when made or deemed made or delivered;the repurchase of such non- Eligible Lease Receivable in accordance with Section 7.02 of the Lease Sale and Contribution Agreement; or
(ed) The Program AgentExcept to the extent permitted by the terms hereof, on behalf of the Secured Parties, Lenders shall cease to have a valid and perfected first priority security interest in each Lease Receivable and Related Security (subject to SECTION 7.07 hereof), the Pledged Contracts Equipment, Remarketing Proceeds and Collections Collections; PROVIDED, HOWEVER, that (i) to the extent any breach of the foregoing may be cured within fifteen days, the Borrower shall have fifteen days after learning thereof to cure such breach (including by the repurchase of such Lease Receivable in accordance with respect thereto Section 7.02 of the Lease Sale and Contribution Agreement); or
(i) The Borrower 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 against the Borrower (an "Involuntary Proceeding") or by the Borrower 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, or other Collateral;similar official for it or for any substantial part of its property; or (ii) the Borrower's Board of Directors shall vote affirmatively to authorize any of the actions set forth in CLAUSE (i) above in this SUBSECTION (e); or
(f) An A Servicer Replacement Event of Bankruptcy shall occur with respect to any Transaction Party;occur; or
(g) A Servicer As of the last day of any month, (1) the Delinquency Ratio for such month shall exceed 6%, or (2) the Default Ratio for such month shall occur;exceed 2.2%; or
(h) As of the close of business on any Settlement Date, (i) the Senior Borrowing Base for such Settlement Date shall be less than Aggregate Senior Advances (after giving effect to any increases or reductions to Aggregate Senior Advances on such Settlement Date), or (ii) the Junior Borrowing Base for such Settlement Date shall be less than Aggregate Junior Advances (after giving effect to any increases or reductions to Aggregate Junior Advances on such Settlement Date); or
(i) There shall have been any material adverse change in the financial condition or operations of the Borrower after the date hereof, or there shall have occurred any event which materially adversely affects the collectibility of the Lease Receivables generally or there shall have occurred any other event which materially adversely affects the ability of the Borrower to collect Lease Receivables generally or the ability of the Borrower to perform hereunder, in each case, as determined in the reasonable judgment of the Agent; or
(j) The Originator shall cease to directly own 100% of the outstanding capital stock of the Borrower; or
(k) [Intentionally Omitted]
(l) The Pension Benefit Guaranty Corporation or the IRS shall have filed notice of one or more liens against either the Originator or the Borrower (unless such lien does not purport to cover the Lease Receivables), and such notice shall have remained in effect for more than thirty (30) days unless, prior to the expiration of such period, such liens shall have been adequately bonded by the Originator or the Borrower, as applicable; or
(m) The Liquidity Agreement is terminated or expires and is not renewed or replaced; or
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration Seller or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and payable and any such failure shall continue remain unremedied for three one (31) Business Days;Day after the earlier of (i) knowledge by a responsible officer of the Seller or (ii) written notice thereof has been given by the Agent to the Seller; or
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any term, covenant or agreement contained in this Purchase Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five ten (510) Business Days after any Affected Party gives the earlier of (i) knowledge by a responsible officer of the Seller or (ii) written notice thereof has been given by the Agent to the Seller; or
(c) The Parent, Servicer or any Originator shall fail to perform or observe any term, covenant or agreement contained in this Purchase Agreement, the Sale Agreement, the Performance Guaranty or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for ten (10) Business Days after the earlier of (i) knowledge by a Responsible Officer of the BorrowerParent, the Originator, the Servicer or any Performance Guarantorapplicable Originator or (ii) written notice thereof has been given by the Agent to the Parent, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;applicable Originator; or
(d) The Seller or the Servicer shall fail to deliver an Investor Report or Investment Certificate as required by Section 5.02(c) hereof and such failure shall remain unremedied for two (2) Business Days after the earlier of (i) knowledge by a responsible officer of the Seller or (ii) written notice thereof has been given by the Agent to the Seller; or
(e) Any representation or warranty made or deemed to be made by the Borrower, Parent (or any of its officers) under or in connection with the Originator, Performance Guaranty or the Seller or the Servicer (or any Performance Guarantor of its officers) under or in connection with this Agreement or Purchase Agreement, any other Facility Document (including any Monthly Investor Report, any Monthly Serviced Portfolio Report, any Borrowing Base Investment Certificate, any Borrowing Capital Purchase Request or other information or report delivered pursuant hereto) hereto shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) material respect when made or deemed made or delivered;made; or
(ef) The Program AgentExcept to the extent permitted by the terms hereof, on behalf of the Secured Parties, Purchaser shall cease to have a valid and perfected first priority security interest in each Receivable and the Pledged Contracts Related Security and Collections with respect thereto thereto; or
(i) The Seller, Parent, ACCO, any Originator or the Servicer shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any other Collateral;proceeding shall be instituted by or against the Seller, Parent, ACCO, any Originator or 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 custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, and, in the case of any such involuntary proceeding instituted against Parent, ACCO, any Originator or the Servicer (but not instituted by Parent, ACCO, any Originator or the Servicer), such proceeding shall remain either undismissed or unstayed for a period of 60 days; or (ii) the Seller’s, Parent’s, ACCO’s, any Originator’s, or the Servicer’s Board of Directors shall vote affirmatively to authorize any of the actions set forth in clause (i) above in this subsection (g); or
(fh) An Event As of Bankruptcy the last day of any Monthly Period, (1) the average of the respective Delinquency Ratios determined as of each of the three then most recently ended Monthly Periods shall occur with respect exceed 5.00%, (2) the average of the respective Default Ratios determined as of each of the three then most recently ended Monthly Periods shall exceed 9.50%, (3) the average of the respective Dilution Ratios determined as of each of the three then most recently ended Monthly Periods shall exceed 18.00%, or (4) the average of the respective Loss-to-Liquidation Ratios determined as of each of the three then most recently ended Monthly Periods shall exceed 1.00%; or
(i) As of the close of business on any date, the sum of (i) the aggregate Capital plus (ii) the Aggregate Reserves would exceed the Net Receivables Balance (after giving effect to any Transaction Party;increases or reductions to Capital on such date) and such excess shall remain outstanding for two (2) Business Days; or
(gj) A There shall have occurred any event which materially adversely affects the collectibility of the Transferred Receivables, taken as a whole, or there shall have occurred any other event which materially adversely affects the ability of the Servicer Default to collect Receivables or the ability of the Servicer, any Originator or the Seller to perform its obligations under this Purchase Agreement or the other Facility Documents to which it is a party; or
(k) At any time, a Change of Control shall occur;; or
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occuroccur and be continuing:
(a) The Borrower the Seller shall fail to make when due any payment or deposit to be made by it under this Agreement (x) of principal in including any payment with respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when dueany Deemed Collection);
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe (i) any term, covenant or agreement contained in Section 4.01(l) or 4.01(o) and such failure shall remain unremedied for 15 days or (ii) any other term, covenant or agreement contained in this Agreement or any other Facility Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for five thirty (530) Business Days after days; provided, that failure to perform or observe any Affected Party gives notice thereof covenant contained in Sections 4.01(b), 4.01(d), 4.01(g), 4.01(h) or 4.01(q) shall not be entitled to a Responsible Officer the benefit of the Borrower, the Originator, the Servicer such 30-day or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof15-day period;
(dc) Any any representation or warranty (unless such representation or warranty relates solely to one or more specific Receivables incorrectly characterized as Eligible Receivables and the Seller shall have made any required Deemed Collection payment pursuant to Section 2.03 with respect to such Receivables) made or deemed to be made by the Borrower, the Originator, the Servicer Seller (or any Performance Guarantor of its officers) under or in connection with this Agreement or any other Facility Document (including any Monthly Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered by the Seller pursuant hereto) to this Agreement shall prove to have been materially false incorrect or incorrect untrue in any material respect when made or deemed made or delivered (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms);
(d) the Seller shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $10,000 in the aggregate when made the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or deemed made otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or deliveredinstrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), 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 stated maturity thereof;
(e) The Program Agent, on behalf any Purchase of Transferred Assets hereunder shall for any reason cease to constitute valid and perfected ownership of such Transferred Assets or immediately prior to each Purchase hereunder the Secured Parties, Seller shall cease to have a valid and perfected first priority security ownership interest therein, or there shall exist any Adverse Claim in the Pledged Contracts and Collections with respect thereto or any other Seller Collateral;
(f) An Event the Seller 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 Bankruptcy creditors; or any proceeding shall occur with respect be instituted by or against the Seller 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 Transaction Partylaw 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, 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 Seller shall take any corporate action to authorize any of the actions set forth above in this subsection (f);
(g) A Servicer Default an Event of Termination shall occur;have occurred under the Financing Agreement; or
(h) there shall have occurred any event which may materially adversely affect the collectibility of the Transferred Receivables or the ability of the Seller to collect Transferred Receivables or otherwise perform its respective obligations under this Agreement or the other Transaction Documents; then, and in any such event, the Purchaser may, by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), and all Purchases hereunder shall cease immediately; provided, however, that in the case of any event described in clause (f) above, the Facility Termination Date shall occur automatically upon the occurrence of such event. Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Transferred Assets and Seller Collateral provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Samples: Secondary Purchase Agreement (Hayes Lemmerz International Inc)
Events of Termination. If any Any one or more of the following events shall constitute an event of termination (each, an “Event of Termination”) shall occurunder this Agreement:
9.1 If Midway fails to timely pay any Factor Expenses within thirty (30) days of written invoice as set forth in Section 6.1 above or remit any Factor Payment payable to the Factor pursuant to the terms hereof;
9.2 If Midway:
(a) The Borrower shall fail fails or neglects to make any payment (x) of principal in respect of the Loans when due (whether at stated maturityperform, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrowerkeep, the Originator, the Servicer or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant provision, covenant, or agreement contained in Sections 7.2 and 8.3 through 8.5 of this Agreement; or
(b) fails or neglects to perform, keep, or observe any other term, provision, covenant, or agreement contained in this Agreement or any Agreement, in each case, other Facility Document on its part to be performed or observed and than any such term, provision, covenant, or agreement that is the subject of another provision of this Section 9 (in which event such other provision of this Section 9 shall govern), and such failure shall remain unremedied continues for five a period of ten (510) Business Days after any Affected Party gives the earlier of the date Midway receives notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
9.3 If an Insolvency Proceeding is commenced by Midway;
9.4 If an Insolvency Proceeding is commenced against Midway, and any of the following events occur: (a) Midway consents to the institution of the Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted; provided, however, that, during the pendency of such period, the Factor shall be relieved of its obligation to purchase Eligible Accounts hereunder, (c) the petition commencing the Insolvency Proceeding is not dismissed within 45 calendar days of the date of the filing thereof; provided, however, that, during the pendency of such period, the Factor shall be relieved of its obligation to purchase Eligible Accounts hereunder, (d) Any representation an interim trustee, administrator, receiver or warranty made or deemed other similar officer is appointed to be made by the Borrower, the Originator, the Servicer take possession of all or any Performance Guarantor under substantial portion of the properties or in connection with this Agreement assets of, or to operate all or any other Facility Document (including any Monthly Reportsubstantial portion of the business of, any Monthly Serviced Portfolio ReportMidway, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false or incorrect (except that the materiality standard in this clause (d) shall not apply to any such representation or warranty that is qualified by a materiality standard by its terms) when made or deemed made or delivered;
(e) The Program Agentan order for relief shall have been entered therein;
9.5 If Midway is enjoined, on behalf of the Secured Partiesrestrained, shall cease or in any way prevented by court order from continuing to have a valid and perfected first priority security interest in the Pledged Contracts and Collections with respect thereto conduct all or any other Collateral;material part of its business affairs; or
(f) An Event 9.6 If any misstatement or misrepresentation in any material respects exists now or hereafter in any warranty, representation, statement, or Record made to the Factor by Midway, or any officer, employee, agent, or director of Bankruptcy shall occur Midway with respect to this Agreement.
9.7 The occurrence of any Transaction Party;
(g) A Servicer Default shall occur;“Event of Default” under and as defined in the Senior Loan Agreement.
Appears in 1 contract
Events of Termination. If any of the following events (each, an “Event of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Transaction Party shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due (other than as referred to in Section 7.01(f)) and such failure shall continue continues unremedied for three (3i) in the case of Interest, two (2) Business DaysDays or (ii) in the case of any other payment or deposit, one (1) Business Day;
(cb) The Borrower, the Originator, any Transaction Party other than the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained hereunder (other than as referred to in this Agreement Sections 7.01(a) or 7.01(f)) or any other Facility Document on its part to be performed or observed and any such failure shall remain continue unremedied for five (5) Business Days after the earlier of (x) such Transaction Party obtains actual knowledge thereof or (y) any Affected Party gives Managing Agent delivers written notice thereof to a Responsible Officer of the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofsuch Transaction Party;
(dc) Any representation any representation, warranty, certification or warranty made or deemed to be statement made by the Borrowerany Transaction Party in this Agreement, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including Document, any Monthly Report, any Monthly Serviced Portfolio ReportWeekly Report or in any other document, any Borrowing Base Certificate, any Borrowing Request report or other information or report delivered pursuant hereto) hereto or thereto shall prove to have been materially false or incorrect in any material respect on the date as of which made or deemed made (or, in the case of any representation, warranty, certification or statement that by its terms refers to an earlier date, shall have been false or incorrect in any material respect on and as of such earlier date) (except that the materiality standard in this clause (dc) shall not apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on a Material Adverse Effect by its express terms);
(d) any failure of Borrower to pay any Indebtedness (other than Indebtedness created under the Facility Documents) when made or deemed made or delivereddue;
(e) The Program Agentan Event of Bankruptcy occurs in respect of any Transaction Party;
(f) either (i) a Borrowing Base Deficiency shall occur, and shall not have been cured within two (2) Business Days after the date on behalf which the Borrower or the Servicer knows or should know of the existence thereof, (ii) any Collections shall be Released by the Borrower or the Servicer at any time during which a Borrowing Base Deficiency shall exist in violation of either (x) the proviso set forth in Section 2.06(a)(iv) or (y) the proviso set forth in Section 2.06(c)(iii), and in either case, an amount equal to the amount of any such Release shall not have been deposited into the Collection Account within two (2) Business Days after the earlier of the date on which (x) the Borrower or the Servicer obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to the Borrower or the Servicer, or (iii) any payment shall be made at any time during which the aggregate Outstanding Balance of Receivables owned by the Borrower at such time is less than the sum of the Borrower Obligations in violation of Section 8.12 of the Receivables Sale Agreement, and an amount equal to the amount of such payment shall not have been returned to the Borrower within two (2) Business Days after the earlier of the date on which (x) such Originator obtains actual knowledge thereof or (y) any Managing Agent delivers written notice thereof to such Originator or the Borrower;
(g) as at the end of any Monthly Period:
(i) the average of the Dilution Trigger Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 14.0%;
(ii) the average of the Delinquency Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 8.514.0%;
(iii) the average of the Default Ratios for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 4.5%; or
(iv) the average of the Days Sales Outstanding for such Monthly Period and the two (2) immediately preceding Monthly Periods shall exceed 90 days;
(h) a Change of Control shall occur;
(i) one or more final judgments for the payment of money shall be entered against Borrower in an amount in excess of $16,750, individually or in the aggregate, and such judgment or judgments shall continue unsatisfied or unstayed and in effect for 60 days;
(j) (i) the “Termination Date” under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or (ii) any Originator shall for any reason (other than as a result of a Permitted Disposition) cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to Borrower under the Receivables Sale Agreement or (iii) Borrower shall for any reason (other than as a result of a Permitted Disposition) cease to purchase, or cease to have the legal capacity to purchase, or otherwise be incapable of accepting Receivables from any Originator under the Receivables Sale Agreement;
(k) this Agreement or any other Facility Document shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of any Transaction Party, or any Transaction Party shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or the Administrative Agent for the benefit of the Secured Parties, Parties shall cease to have a valid and perfected first priority security interest in the Pledged Contracts Receivables, the Related Security and the Collections with respect thereto and the Deposit Accounts;
(l) any Person shall be appointed as an Independent Manager of the Borrower without prior notice thereof having been given to the Administrative Agent in accordance with Section 5.01(b)(viii) or without the written acknowledgement by the Administrative Agent that such Person conforms, to the satisfaction of the Agent, with the criteria set forth in the definition herein of “Independent Manager”;
(m) an ERISA Event shall have occurred that, in the opinion of the Required Managing Agents, when taken together with all other ERISA Events that have occurred, would result in a Material Adverse Effect;
(n) the occurrence of any event or circumstance that could reasonably be expected to have a material adverse effect on (i) the legality, validity or enforceability of this Agreement or any other Collateral;Facility Document, (ii) any Secured Party’s interest in the Receivables generally or in any material portion (as determined in the sole discretion of any Managing Agent) of the Receivables, the Related Security or the Collections with respect thereto, or (iii) the collectability of the Receivables generally or of any material portion of the Receivables; or
(fo) An Event the occurrence of Bankruptcy shall occur with respect to any Transaction Party;
(g) A Servicer Default shall occur;Default.
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Events of Termination. If any of the following events (each, an “Event Events of Termination”) shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit in respect of Capital, Yield, Facility Fees, Program Fees or Servicer Fees required to be made by it hereunder when due and such failure shall continue for one (1) Business Day after the first to occur of knowledge thereof by a Responsible Officer of the Seller or receipt of written notice thereof from the Agent to the Seller;
(b) The Seller shall fail to make any payment or deposit (other than as described those amounts referred to in clause (a) above) or under any other Facility Document required to be made by it hereunder when due and such failure shall continue unremedied for three (3) Business DaysDays after receipt of written notice thereof from the Agent to the Seller;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe in any material respect any other term, covenant (other than the covenant set forth in Section 5.01(m)) or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five fifteen (515) Business Days days after any Affected Party gives notice the first to occur of knowledge thereof to by a Responsible Officer of the Borrower, Seller or notice thereof from the Originator, Agent to the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereofSeller;
(d) Any representation or warranty made or deemed to be made by the BorrowerSeller under this Agreement, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly Investor Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Purchase Request or other information or report delivered pursuant hereto) hereto shall prove to have been materially false or incorrect in any material respect when made (except that without giving effect to the materiality standard proviso set forth in this clause Section 3.02(i)) and the Seller shall fail to complete corrective actions reasonably satisfactory to the Agent within fifteen (d15) shall not apply days after the first to any such representation or warranty that is qualified occur of knowledge thereof by a materiality standard by its terms) when made Responsible Officer of the Seller or deemed made or deliveredreceipt of written notice thereof from the Agent to the Seller;
(e) The Program Agent, on behalf Except to the extent (1) permitted by the terms hereof or of the Secured PartiesSale Agreement and (2) that any of the Related Security included in the Receivables Assets constitutes property an ownership interest in which may not be perfected by filing a financing statement under the UCC, the Purchasers shall cease to have a valid and perfected first priority security ownership interest to the extent of the pertinent Purchased Interest in each Receivable (excluding Repurchased Receivables) and the Pledged Contracts Related Security and Collections with respect thereto thereto; provided, however, that an Event of Termination shall not be deemed to have occurred under this paragraph (e) if there shall be a Lien on one or any other Collateralmore Receivables and the Seller shall have repurchased such Receivable or Receivables in accordance with Section 8.04;
(f) An Event The Seller or TRW shall generally fail to pay, or admit in writing its inability to pay, its debts as they become due; or the Seller or TRW shall apply for, consent to, or acquiesce in the appointment of, a trustee, receiver, or other custodian for it or for a substantial part of Bankruptcy its property, or make a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, or receiver, or other custodian shall occur with be appointed for the Seller or TRW or for a substantial part of its property; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding, shall be commenced in respect of the Seller or TRW and, if such case or proceeding is not commenced by the Seller or TRW, as the case may be, it is consented to or acquiesced in by the Seller or TRW, as the case may be, or remains undismissed or unstayed for ninety (90) consecutive days; or the Seller or TRW shall take any Transaction Partycorporate action to authorize any of the foregoing;
(g) A Servicer Default Termination Event (other than a Servicer Termination Event of the type specified in clause (f) of the definition thereof) shall occur; provided, however, that if TRW has been replaced as Servicer, then from and after the date of such replacement, the occurrence of a Servicer Termination Event shall not constitute an Event of Termination hereunder;
(h) As of the last day of any Monthly Period, (1) the Default Ratio for such Settlement Period shall exceed 5.0%, (2) Delinquency Ratio for such Settlement Period shall exceed 7.0%, (3) the three month rolling average Dilution Ratio for such Settlement Period shall exceed 6.0% or (4) the Loss-to-Liquidation Ratio for such Settlement Period shall exceed 1.0%;
(i) As of the close of business on any date, to the knowledge of a Responsible Officer of the Seller or a Responsible Officer of the Servicer (so long as TRW is the Servicer), the Required Receivables Balance as of such date exceeds the Net Receivables Pool Balance (after giving effect to any increases or reductions to Capital on such date) and such excess continues for seven (7) Business Days after the date on which a Responsible Officer of the Seller or a Responsible Officer of the Servicer (so long as TRW is the Servicer) first had knowledge of such excess;
(j) There shall have occurred any event or circumstance which materially adversely affects the collectibility of the Receivables, taken as a whole;
(k) There shall have occurred a default in the payment when due at maturity or on the date of any required prepayment, redemption or repurchase (subject to any applicable grace period) or by acceleration of any Indebtedness of the Seller or any Material Indebtedness of TRW, or a default in the performance or observance of any obligation or condition with respect to any Indebtedness of the Seller or any Material Indebtedness of TRW if such default results in the acceleration of the maturity of such Indebtedness; provided, that if any such default shall subsequently be remedied, cured or waived prior to the declaration of the Termination Date pursuant to this Article VII, and as a result the payment of such Indebtedness is no longer due, the Event of Termination existing hereunder by reason of this clause (k) shall likewise be deemed thereupon to be remedied, cured or waived and no longer in existence, all without any further action by the parties hereto;
(l) A “Purchase Termination Event” under and as defined in the Sale Agreement shall occur or TRW shall have declared the “Purchase Termination Date” as defined in and in accordance with the Sale Agreement;
(m) The long term senior unsecured debt obligations of TRW are rated less than BB by S&P or Ba2 by Mxxxx’x;
(n) A Change in Control shall have occurred;
(o) The Seller shall fail to comply with Section 5.01(m) hereof; or
(p) TRW shall cease to own directly or indirectly one hundred percent (100%) of the voting securities or equity interests of the Seller and at least a majority of the voting securities or equity interests of any subsidiary of TRW which originates Receivables. then, and in any such event, the Agent shall, at the request, or may with the consent, of the Majority Purchasers, by written notice to the Seller, declare the Termination Date to have occurred, except that, in the case of any event described in subsection (f) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, the Agent and the Purchasers shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. Upon the occurrence of the Termination Date, all obligations hereunder shall be immediately due and payable and all Capital shall be immediately due and payable, provided, however, that Capital shall be payable solely out of Collections and other amounts payable pursuant to the terms of this Agreement.
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Events of Termination. If any of the following events (each, an “Event "Events of Termination”") shall occur:
(a) The Borrower shall fail to make any payment (x) of principal in respect of the Loans when due (whether at stated maturity, upon acceleration or at mandatory prepayment (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of funds) or (y) of Interest on the Loans or Liquidity Fees when due;
(b) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue remain unremedied for three (3) one Business Days;Day after written notice to the Deal Agent; or
(cb) The Borrower, the Originator, the Servicer or any Performance Guarantor Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Facility Document on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days days after any Affected Party gives written notice thereof to a Responsible Officer of from the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, or the Borrower, the Originator, the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;Deal Agent; or
(dc) Any representation or warranty made or deemed to be made by the Borrower, the Originator, the Servicer Seller (or any Performance Guarantor of its officers or agents) under or in connection with this Agreement or Agreement, any other Facility Document (including any Monthly Asset Report, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Purchase Request or other written information or report delivered pursuant hereto) hereto or pursuant to any other Facility Document shall prove to have been materially false or incorrect (except in any material respect when made; provided, however, that the materiality standard in this clause (d) shall not apply to if any such representation or warranty that relates to an Asset which is qualified repurchased by a materiality standard by its terms) when made the Seller pursuant to Section 9.02 hereof, then the breach of such representation or deemed made or delivered;warranty shall not give rise to an Event of Termination under this subsection (c); or
(ed) The Program AgentAny Asset Purchase shall for any reason, on behalf of except to the Secured Partiesextent permitted by the terms hereof, shall cease to have create a valid and perfected first priority security interest in each Purchased Asset and the Pledged Contracts Related Security (subject to Section 6.05 hereof) and Collections with respect thereto or thereto; provided, however, if any other Collateral;such failure relates to an Asset which is repurchased by the Seller pursuant to Section 9.02 hereof, then such failure shall not give rise to an Event of Termination under this subsection (d); or
(e) The Guarantors of Purchased Assets with an Outstanding Balance equal to one-half of the Deferred Purchase Price shall be subject to any action described in clause (f) An Event of Bankruptcy this Section 7.01 and a successful claim shall occur be made in connection with respect such action such that the Guarantor or its creditors are deemed by the court in such proceeding to any Transaction Party;be the owner of the Purchased Assets; or (f)
(gi) A Servicer Default The Seller shall occur;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 against the Seller (an "Involuntary Proceeding") or by the Seller 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, or other similar official for it or for any substantial part of its property and, in the case of an Involuntary Proceeding, such proceeding shall continue undismissed, unstayed and in effect for a period of sixty (60) consecutive days; or (ii) the Seller's Board of Directors shall vote affirmatively to authorize any of the actions set forth in clause (i) above in this subsection (f); or
Appears in 1 contract
Samples: Asset Purchase Agreement (Litchfield Financial Corp /Ma)
Events of Termination. If any of the following events (each, an “Event of Termination”"EVENTS OF TERMINATION") shall occur:
(a) The Borrower shall fail (i) failure on the part of Originator, the Club Trustee or the Seller to make or cause to be made any payment or deposit (xor in the alternative, Receivable substitution) required by the terms of principal in respect of this Agreement or any Transaction Document on the Loans when due day such payment or deposit (whether at stated maturityor substitution) is required to be made by Originator, upon acceleration the Club Trustee or at mandatory prepayment the Seller (pursuant to Section 2.05(b) or otherwise) and without giving effect to availability of fundsany applicable grace period) or (yii) of Interest failure on the Loans part of Originator, the Club Trustee, the Managing Entity or Liquidity Fees when duethe Seller to observe or perform any of its other covenants or agreements set forth in this Agreement or any Transaction Document, which failure continues unremedied for a period of 30 days after written notice; PROVIDED, that only a 10 day cure period shall apply in the case of a failure by Originator or the Seller to observe its covenant not to grant a security interest or otherwise intentionally create a Lien on the Receivables;
(b) The Borrower, the any representation or warranty made by Originator, the Servicer Club Trustee or any Performance Guarantor shall fail to make any payment or deposit required to be made by it hereunder (other than as described in clause (a) above) or under any other Facility Document when due and such failure shall continue unremedied for three (3) Business Days;
(c) The Borrower, the Originator, the Servicer or any Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained Seller in this Agreement or any other Facility Transaction Document on its part or any information required to be performed or observed and any such failure shall remain unremedied for five (5) Business Days after any Affected Party gives notice thereof to a Responsible Officer of the Borrower, the given by Originator, the Servicer or any Performance Guarantor, as applicable, Club Trustee or the Borrower, Seller to the Originator, Purchaser to identify the Servicer or any Performance Guarantor, as applicable, otherwise obtains knowledge thereof;
(d) Any representation or warranty made or deemed Receivables pursuant to be made by the Borrower, the Originator, the Servicer or any Performance Guarantor under or in connection with this Agreement or any other Facility Document (including any Monthly ReportTransaction Document, any Monthly Serviced Portfolio Report, any Borrowing Base Certificate, any Borrowing Request or other information or report delivered pursuant hereto) shall prove to have been materially false incorrect in any material respect when made or when delivered, which continues to be incorrect (except in any material respect for a period of 30 days after written notice; provided, that the materiality standard in this clause (db) shall not apply to any representation and warranty which relates solely to the condition of a Receivable on the date of Purchase and for which either a substitution, repurchase or cure right under Section 6.3 hereof applies and for which such representation remedies are being pursued by the Seller and Originator consistent with such Section;
(c) the occurrence of an Insolvency Event relating to Bluegreen, the Seller, the Servicer, the Club Trustee, the Managing Entity or warranty that is qualified the Deed Custodian;
(d) the Seller shall become an "INVESTMENT COMPANY" within the meaning of the Investment Company Act of 1940, as amended (the "Act") or the arrangements contemplated by a materiality standard by its terms) when made or deemed made or deliveredthis Agreement shall require registration as an "INVESTMENT COMPANY" within the meaning of the Act;
(e) The Program Agentas of any Determination Date, on behalf of the Secured Parties, Lifetime Cumulative Default Rate shall cease to have a valid and perfected first priority security interest in exceed the Pledged Contracts and Collections with respect thereto or any other CollateralLifetime Cumulative Default Threshold;
(f) An Event as of Bankruptcy any Determination Date, the Trailing Six Month Default Rate exceeds 6.00%; provided, however, if such Determination Date is after the Program Termination Date and the Asset Pool aggregate Receivable Balance is less than 7.50% of the Capital Payout, such test shall occur with respect to any Transaction Party;no longer be applicable.
(g) A at the time of any sale of a Resort Interest to a customer, the Vacation Points related thereto shall be greater than the Vacation Points required for a customer to utilize the Accommodations appurtenant to such Vacation Points;
(h) as of any Determination Date, the Trailing Three Month (31 to 59) and (60 to 89) Day Delinquency Rates exceed 6.0% and 4.0% respectively;
(i) as of any Determination Date, the Weighted Average Spread is less than 5.50%;
(j) as of the end of any fiscal quarter of the Servicer, the Fulfillment Rate for the Resorts listed on Exhibit C shall be less than 75.0%;
(k) as of any Determination Date, the Trailing Three Month Gross Recoveries are less than 85%;
(l) Bluegreen shall cease to own (whether directly or indirectly) 100% of the issued and outstanding stock of the Seller and the Managing Entity or the Seller shall cease to own (whether directly or indirectly) 100% of the issued and outstanding stock of Deed Corp;
(m) a Servicer Default Termination Event shall occur;occur under the Servicing Agreement; then, and in any such event, the Purchaser may, by written notice to the Seller, declare the Termination Date to have occurred, except that, in the case of any event described in Section 8.1(c) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence of the Termination Date, the Purchaser shall have, to the extent the transaction is recharacterized as a secured loan rather than a sale of Receivables notwithstanding the parties intent to have the transaction characterized as a sale of the Receivables and related Assets, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. Notwithstanding anything to the contrary contained in this Section 8.1, the Events of Termination described in clauses (e), (h), (i) and (k) may be cured and Purchases may resume hereunder if such condition shall not exist for three (3) consecutive Collection Periods after the date the Purchaser ceased making Purchases hereunder; provided, however, the ability to cure the Event of Termination in clause (k) shall only be applicable if the trigger level which caused such Event of Termination was above 80%.
Appears in 1 contract
