Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement: (a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days; (b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; (c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation; (d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder; (e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days; (f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower; (i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower; (h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof; (i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis; (j) a Change of Control shall have occurred; (k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act; (l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral; (i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager; (n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion; (o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof; (p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower; (q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or (r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Facility Termination Events. Each of the following shall constitute a “Facility Termination Event Event” under this Agreement:
(a) the Borrower shall fail to pay any default amount on the Obligations (x) on the Facility Termination Date or (y) as otherwise provided for in any Transaction Document when due (in all cases, whether on any Distribution Date, on the Facility Termination Date, by reason of acceleration, by notice of intention to prepay, by required prepayment or otherwise) and, solely in the payment when due case of clause (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereundery), including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue such failure continues for two (2) Business Days;
(b) the Borrower Borrower, the Equityholder or the Investment Manager Services Provider shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 10.11, and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServices Provider, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Services Provider acquires knowledge thereofthereof (after reasonable inquiry);
(c) any representation or warranty of the Borrower Borrower, the Equityholder or the Investment Manager Services Provider made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Services Provider to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServices Provider, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Services Provider acquires knowledge thereofthereof (after reasonable inquiry); provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if either (i) the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation or (ii) after giving effect to the resulting change in the Collateral Obligation Amount with respect to such Collateral Obligation, the aggregate principal amount of all Advances outstanding hereunder does not exceed the Borrowing Base;
(d) either (i) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, Borrower or (ii) an Insolvency Event shall have occurred and be continuing with respect to the Investment Manager or the EquityholderEquityholder and an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such occurrence;
(e) other than solely as a result of a Specified Borrowing Base Breach, the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base or the Maximum Availability, calculated in accordance with Section 1.2(h), and such condition continues unremedied for (x) two (2) consecutive Business Days;
Days or (fy) the Internal Revenue Service shall file notice of a lien pursuant if an Equity Cure Notice was delivered with respect to Section 6323 of the Code with regard to any of the assets of the Borrower such event, twelve (other than a Permitted Lien)12) consecutive Business Days (unless, or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of upon request by the Borrower, the Facility Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned);
(i) any Transaction Document or any lien or security interest Lien granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Services Provider or any other party Person shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest granted under any Transaction Document securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower);
(hg) an Investment Manager a Services Provider Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofthereof and, in the case of a Services Provider Event of Default under clauses (f) or (g) of the definition thereof while the Services Provider is the Equityholder, an Equityholder Credit Event Cure has not been successfully completed within ten (10) Business Days of such occurrence;
(ih) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicableBorrower, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(ji) a Change of Control shall have occurred;
(kj) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Owl Rock Capital Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(lk) failure on the part of the Borrower Borrower, the Equityholder or the Investment Manager Services Provider to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the CollateralCollateral and such failure under this clause (ii) continues for two (2) Business Days;
(l) (i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause Cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents Constituent Documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the resignation, removal for cause, death or incapacitation of the current Independent Manager;
(nm) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderFacility Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(oi) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (ix) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (iiy) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000)250,000; or (ii) the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(po) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(qp) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Periodat any time, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business DaysDays or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (unless, upon request by the Borrower, the Facility Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned); or
(q) a Specified Borrowing Base Breach shall have occurred and continue unremedied for the shorter of (x) 180 consecutive days and (y) two consecutive Distribution Dates.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after knowledge by the earlier to occur of (i) Borrower or the date on which Investment Manager thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Facility Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Maximum Availability or, other than solely as a result of a Revaluation Borrowing Base Event, the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service IRS shall file notice of a lien Lien pursuant to Section 6323 6321 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien)Borrower, or the PBGC shall file notice of an ERISA Event occurs that, alone or together with all other ERISA Events that have occurred, would reasonably be expected to have a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;Material Adverse Effect; -105-
(g) (i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 100,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III TCP Capital Corp. ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(m) (i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderLenders, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 100,000 (or, with respect to the Investment Manager, $1,000,0002,500,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 30 days (or, with respect to the Investment Manager, 60 days days) of the making thereof or (ii) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 100,000 (or, with respect to the Investment Manager, $1,000,0002,500,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote bankruptcy‑remote entity based upon customary criteria such that Dechert Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or;
(r) during the Revolving Period, the Minimum Equity Diversification Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days; or
(s) a Revaluation Borrowing Base Event shall have occurred and continue unremedied for ninety (90) consecutive days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
Facility Termination Events. Each of the following shall constitute a “Facility Termination Event Event” under this Agreement:
(a) the Borrower shall fail to pay any default amount on the Obligations (x) on the Facility Termination Date or (y) as otherwise provided for in any Transaction Document when due (in all cases, whether on any Distribution Date, on the Facility Termination Date, by reason of acceleration, by notice of intention to prepay, by required prepayment or otherwise) and, solely in the payment when due case of clause (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereundery), including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue such failure continues for two (2) Business Days;
(b) the Borrower Borrower, the Equityholder or the Investment Manager Services Provider shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 10.11, and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServices Provider, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Services Provider acquires knowledge thereofthereof (after reasonable inquiry);
(c) any representation or warranty of the Borrower Borrower, the Equityholder or the Investment Manager Services Provider made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Services Provider to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServices Provider, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Services Provider acquires knowledge thereofthereof (after reasonable inquiry); provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if either (i) the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation or (ii) after giving effect to the resulting change in the Collateral Obligation Amount with respect to such Collateral Obligation, the aggregate principal amount of all Advances outstanding hereunder does not exceed the Borrowing Base;
(d) either (i) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, Borrower or (ii) an Insolvency Event shall have occurred and be continuing with respect to the Investment Manager or the EquityholderEquityholder and an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such occurrence;
(e) other than solely as a result of a Specified Borrowing Base Breach, the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base or the Maximum Availability, calculated in accordance with Section 1.2(h), and such condition continues unremedied for (x) two (2) consecutive Business DaysDays or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (unless, upon request by the Borrower, the Facility Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned);
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest Lien granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Services Provider or any other party Person shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest granted under any Transaction Document securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower);
(hg) an Investment Manager a Services Provider Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofthereof and, in the case of a Services Provider Event of Default under clauses (f) or (g) of the definition thereof while the Services Provider is the Equityholder, an Equityholder Credit Event Cure has not been successfully completed within ten (10) Business Days of such occurrence;
(ih) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicableBorrower, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(ji) a Change of Control shall have occurred;
(kj) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Owl Rock Capital Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(lk) failure on the part of the Borrower Borrower, the Equityholder or the Investment Manager Services Provider to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the CollateralCollateral and such failure under this clause (ii) continues for two (2) Business Days;
(l) (i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause Cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents Constituent Documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the resignation, removal for cause, death or incapacitation of the current Independent Manager;
(nm) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderFacility Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(oi) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (ix) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (iiy) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000)250,000; or (ii) the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(po) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(qp) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Periodat any time, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business DaysDays or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (unless, upon request by the Borrower, the Facility Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall not be unreasonably withheld, delayed or conditioned);
(q) a Specified Borrowing Base Breach shall have occurred and continue unremedied for the shorter of (x) 180 consecutive days and (y) two consecutive Distribution Dates; or
(r) an ERISA Event occurs that, alone or together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager UACC (in any capacity) hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, Fees which default shall continue for two Business Days;
(b) The Borrower, the Borrower Seller, the Servicer, the Guarantor, UPFC (in any capacity) or the Investment Manager UACC (in any capacity) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.6, Section 10.911.7 and 11.8, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Administrative/Collateral Agent to the Borrower Borrower, the Seller, the Servicer, the Guarantor, UPFC or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofUACC;
(c) any Any representation or warranty of the Borrower Borrower, the Seller, the Servicer, the Guarantor, UPFC or the Investment Manager UACC (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower Borrower, the Seller, the Servicer, the Guarantor, UPFC or the Investment Manager UACC (in any capacity) to the Administrative Agent, any Administrative/Collateral Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportDistribution Date Statement or Borrowing Base Confirmation) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation Transferred Contract if such Transferred Contract shall have been purchased or repurchased by the Borrower complies with its obligations in Section 7.11 with respect to such Collateral ObligationServicer, the Seller or the Borrower;
(d) an An Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Seller, the Servicer, the Guarantor, UPFC or the EquityholderUACC;
(e) the The aggregate principal amount of all Advances outstanding hereunder exceeds the Initial Borrowing Base and such condition continues unremedied for two consecutive one Business DaysDay;
(f) the The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower (other than a Permitted Lien)or the Seller and such lien shall not have been released within 30 days, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the BorrowerBorrower or the Seller and such lien shall not have been released within 30 days;
(i) any Any Transaction Document or any lien or security interest granted thereunder by the Borrower Borrower, shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower Borrower, the Seller, the Servicer, the Guarantor, UPFC or the Investment Manager UACC or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted LiensLiens that may arise after the applicable Purchase Date) against the Borrower;
(h) an Investment Manager Event of A Servicer Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofcontinuing;
(i) the Delinquency Ratio exceeds (x) prior to the first Take-Out Securitization, 4.00% or (y) after the first Take-Out Securitization, 2.00%;
(j) the Net Loss Ratio exceeds (x) prior to the first Take-Out Securitization, 8.00% or (y) after the first Take-Out Securitization, 3.50%;
(k) UACC fails to own directly or indirectly 100% of the outstanding equity in the Borrower or UPFC fails to own directly or indirectly 100% of the Investment Manager outstanding equity in UACC;
(l) The Borrower, the Seller, the Servicer, the Guarantor, UPFC or UACC or any Subsidiary of any of the foregoing shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate a principal amount of $250,000 or greater 10,000,000 (or or, in the case of the Investment Manager Borrower, $1,000,000 50,000) or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower Borrower, the Seller, the Servicer, the Guarantor, UPFC or the Investment ManagerUACC or any such Subsidiary, as applicable, ; or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(jm) UACC does not engage in at least two Take-Out Securitizations in each calendar year each of which includes 95% or more of the aggregate principal balance of Eligible Contracts at the time such Take-Out Securitization closes, or UACC does not engage in such a Change Take-Out Securitization within 210 days after the later of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation last such Take-Out Securitization and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent ManagerEffective Date;
(n) On any Distribution Date, after giving effect to all deposits and withdrawals on such date, the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining amount on deposit in the specific written consent of Reserve Account is less than the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretionReserve Account Amount;
(o) On any court shall render a finalDistribution Date, non-appealable judgment against after giving effect to all deposits and withdrawals on such date, the Borrower or amount on deposit in the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to Cap Funding Reserve Account is less than the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereofCap Funding Reserve Account Requirement;
(p) The report of the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion auditors with respect to annual financial statements of the Borrower;Servicer delivered pursuant to Section 11.4(a) is qualified in any manner; or
(q) failure Ray Thousand shall cease to pay, on be CEO of UACC and the Facility Termination Date, all outstanding Obligations; or
(r) during replacement CEO has not been approved by the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business DaysRequired Lenders.
Appears in 1 contract
Sources: Receivables Financing Agreement (United Pan Am Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager UACC (in any capacity) hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, Fees which default shall continue for two Business Days;
(b) The Borrower, either Seller, the Borrower Servicer, the Guarantor, UPFC (in any capacity) or the Investment Manager UACC (in any capacity) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.6, Section 10.911.7 and 11.8, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Administrative/Collateral Agent to the Borrower Borrower, the related Seller, the Servicer, the Guarantor, UPFC or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofUACC;
(c) any Any representation or warranty of the Borrower Borrower, either Seller, the Servicer, the Guarantor, UPFC or the Investment Manager UACC (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower Borrower, such Seller, the Servicer, the Guarantor, UPFC or the Investment Manager UACC (in any capacity) to the Administrative Agent, any Administrative/Collateral Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportDistribution Date Statement or Borrowing Base Confirmation) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation Transferred Contract if such Transferred Contract shall have been purchased or repurchased by the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;Servicer, a Seller or the Borrower; [**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT]
(d) an An Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Sellers, the Servicer, the Guarantor, UPFC or the EquityholderUACC;
(e) the The aggregate principal amount of all Advances outstanding hereunder exceeds the Initial Borrowing Base and such condition continues unremedied for two consecutive one Business DaysDay;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Receivables Financing Agreement (United Pan Am Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager Servicer hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and, Section 10.16 and Section 10.16 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager Servicer made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Servicer to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Servicer or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for (x) two consecutive Business Days or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 430 of the Code or Section 303(k) or 4068 of ERISA with regard regardrespect to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager a Servicer Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager Servicer $1,000,000 5,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment ManagerServicer, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) Default in the payment in full when due of any principal of the Advance or default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any the Advance, within three (3) Business Days of the due date thereof; provided, however, there shall be no Facility Termination Event under this clause (a) if such failure to pay is caused solely by any Undrawn Fee failure or any other Fee, delay of the Administrative Agent in each case, which default shall continue for two Business Dayswithdrawing funds from the Escrow Account and applying such funds to payment of the Obligations;
(b) the The Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section Sections 10.6, 10.7, Section 10.910.9 and 10.10, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days 5 Business Days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Administrative Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofBorrower;
(c) any Any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligationmade;
(d) an An Insolvency Event shall have occurred and be continuing with respect to any of the Borrower or either the Borrower, the Investment Manager or the EquityholderLoan Seller;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower (other than a Permitted Lien)Borrower, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Bridge Loan Agreement (TriplePoint Venture Growth BDC Corp.)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.breach
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) i. any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) ii. the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) iii. any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) iv. an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(ei) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business DaysDays or (ii) the Foreign Currency Advance Amount exceeds the Foreign Currency Sublimit, which default shall continue for sixty (60) days;
(f) vi. the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) viii. an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofthereof or any other applicable section of this Agreement;
(i) ix. the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) x. a Change of Control shall have occurred;
(k) xi. either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III KKR Capital Corp. ceases to be a “business development company” within the meaning of the 1940 Act;
(l) xii. failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) xiv. the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Majority Lender, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) xv. any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(p) xvi. the Borrower shall fail to qualify as a bankruptcy-remote bankruptcy‑remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) xvii. failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) xviii. during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Agreement (FS KKR Capital Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, Fees which default shall continue for two one Business DaysDay; or the Borrower shall fail to comply with the Clean-Up Requirement during any Clean-Up Period;
(b) the The Borrower or the Investment Manager AFL (in any capacity) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, Agreement or in any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7SECTIONS 11.7 and 11.8, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period 30 days (one Business Day in the case of thirty (30SECTION 11.6) days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofBorrower;
(c) any Any representation or warranty of the Borrower or the Investment Manager AFL (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower to the Agent or the Investment Manager to the Administrative Agent, any Agent or any Lender Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Reportcertificates delivered pursuant to SECTION 7.2(j), any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to SECTION 7.2(g)) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, PROVIDED that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to any Eligible Receivable to the “eligibility” extent AFL or the Servicer has repurchased the related Receivable in accordance with the provisions hereof or of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral ObligationPurchase Agreement;
(d) an Insolvency An Event of Bankruptcy shall have occurred and be remain continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the BorrowerAFL;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Receivables Financing Agreement (Arcadia Financial LTD)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default i. Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager Drive (in any capacity) hereunder, including including, without limitation, any Yield Interest on any Advance, any Undrawn Fee or any other Fee, in each case, Advance which default shall continue for two one Business DaysDay;
(b) the ii. The Borrower or the Investment Manager Drive (in any capacity) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.7 and 11.8, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty 30 days (30two days with respect to Section 11.6) days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofDrive;
(c) any iii. Any representation or warranty of the Borrower or the Investment Manager Drive (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Drive (in any capacity) to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportServicer's Certificate or Borrowing Base Confirmation) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “"eligibility” " of any Collateral Obligation Receivable if such Receivable shall have been purchased or repurchased by the Borrower complies with its obligations in Section 7.11 with respect to such Collateral ObligationServicer or the Seller;
(d) an iv. An Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Borrower or the EquityholderDrive;
(e) the v. The aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive one Business DaysDay (such excess referred to as the "Borrowing Base Deficiency");
(f) the vi. The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower (other than a Permitted Lien)or any material portion of the assets of Drive and such lien shall not have been released within 5 Business Days, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the BorrowerBorrower or Drive and such lien shall not have been released within 5 Business Days;
vii. (i) any Any Transaction Document or any lien or security interest granted thereunder by the Borrower Borrower, shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Receivables Financing Agreement (Firstcity Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III II ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders Administrative Agent shall be appointed without the consent of the Required LendersAdministrative Agent; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderAdministrative Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp II)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower Borrower, the Equityholder or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower Borrower, the Equityholder or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower Borrower, the Equityholder or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(ei) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;Days or (ii) the Foreign Currency Advance Amount exceeds the Foreign Currency Sublimit, which default shall continue for sixty (60) days; USActive 31637433.35 -118-
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 6321 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofthereof or any other applicable section of this Agreement;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III KKR Capital Corp. ceases to be a “business development company” within the meaning of the 1940 Act;; USActive 31637433.35 -119-
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Majority Lender, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) i. any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) ii. the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and USActive 31506654.2531506654.28 agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) iii. any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) iv. an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(ei) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business DaysDays or (ii) the Foreign Currency Advance Amount exceeds the Foreign Currency Sublimit, which default shall continue for sixty (60) days;
(f) vi. the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) viii. an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofthereof or any other applicable section of this Agreement;
(i) ix. the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Facility Termination Events. Each If any of the following shall constitute events occurs (each, a “Facility Termination Event under this Agreement:Event”):
(a) other than as set forth in Section 8.02(a), the Borrower, any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower Seller or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager Administrator shall fail to perform or observe any other material term, covenant or agreement contained in this Agreement, hereunder or under any other Transaction Document on its part to be performed or observed andFacility Document, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain continue for ten (10) Business Days following the earlier of actual knowledge of such failure by a Responsible Officer of such Person or receipt by such Person of written notice of such failure by the Agent or any Lender;
(b) as of any Monthly Reporting Date, the Rolling Three Month Reimbursement Percentage is less than 15.0%;
(c) as of any Monthly Reporting Date, the Weighted Average Liquidation Period exceeds fifteen (15) months;
(d) as of any Monthly Reporting Date, the Weighted Average Months Outstanding exceeds twenty four (24) months;
(e) a Change of Control shall occur;
(f) any Seller or the Administrator 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 $5,000,000, when and as the same shall become due and payable (subject to any applicable grace period) or any event or condition occurs and, while continuing, results in any Indebtedness of any Seller or the Administrator in with a principal amount in excess of $5,000,000 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;
(g) the Annual Net Cash Provided by Operating Activities of the Parent shall be less than $50,000,000;
(h) as of the last day of any fiscal quarter of the Administrator, the Tangible Net Worth of the Administrator shall be less than $25,000,000;
(i) ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac shall terminate any Seller as an approved servicer;
(j) the occurrence of any Servicer Termination Event that would result in a Material Adverse Effect on a Seller;
(k) any Seller shall fail to comply with (i) the Stop Advance Criteria, (ii) Nonrecoverable Advance Policy or (iii) other policy that if not complied with by such Seller would have a Material Adverse Effect;
(l) the Verification Agent is terminated by the Borrower or any of their Affiliates or subsidiaries and such termination becomes effective prior to the selection and approval by the Agent of a successor verification agent (such approval not to be unreasonably withheld or delayed) and the assumption of the Verification Agent’s duties by such successor verification agent;
(m) any failure of a Seller to comply with any applicable Requirement of Law regarding licensing, consumer lending or debt collection practices that would have a Material Adverse Effect;
(n) the aggregate notional amount under all Interest Rate Hedge Agreements shall be less than seventy percent (70.0%) of the Aggregate Loan Amount; or
(o) the aggregate notional amount under all Interest Rate Hedge Agreements shall be less than eighty percent (80.0%) but greater than seventy percent (70%) of the Aggregate Loan Amount and the same shall continue unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which actual knowledge thereof by a Responsible Officer of the Borrower Administrator or receipt by the Investment Manager acquires knowledge thereof;
(c) any representation or warranty Administrator of written notice thereof by the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes Lender. then, upon the occurrence of or in connection with this Agreement or any other Transaction Document such event, the Agent (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and at the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer direction of the Borrower or the Investment Manager acquires knowledge thereof; providedRequired Lenders) may, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent Borrower and each Agent (in each case as required by the organization documents of Administrator, declare the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall Termination Date to have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Daysoccurred.
Appears in 1 contract
Sources: Receivables Loan Agreement (Walter Investment Management Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, Fees which default shall continue for two one Business DaysDay;
(b) the Borrower or the Investment Manager Any MFN Entity shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, Agreement or in any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.6, Section 10.911.7, Section 10.11 11.10, 12.2(a) and Section 10.16 Article XIX, as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 10 days after the earlier to occur of (i) the date on which knowledge thereof by any MFN Entity or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofany MFN Entity;
(c) any Any representation or warranty of the Borrower or the Investment Manager any MFN Entity (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of any MFN Entity to the Borrower Agent or the Investment Manager to the Administrative Agent, any Agent or any Lender Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportServicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) and, within 30 days (if such failure can be remedied) after the earlier to occur of (i) knowledge thereof by a Responsible Officer, as the case may be, and the date on which written notice of such failure requiring the same to be remedied thereof shall have been given to any MFN Entity, as the Borrower case may be, by the Agent, the circumstances or the Investment Managercondition in respect of which such representation, and (ii) the date on which a Responsible Officer of the Borrower warranty or the Investment Manager acquires knowledge thereofstatement was incorrect shall not have been eliminated or otherwise cured; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” eligibility of any Collateral Obligation if Receivable on its Purchase Date to the Borrower complies extent the Seller has repurchased such Receivable in accordance with its obligations in Section 7.11 with respect to such Collateral Obligationthe provisions hereof or of the Sale and Contribution Agreement;
(d) an Insolvency An Event of Bankruptcy shall have occurred and be remain continuing with respect to either the Borrower, the Investment Manager or the Equityholderany MFN Entity;
(e) the The aggregate principal amount of all Advances plus the Accrued Expenses outstanding hereunder exceeds on any day shall exceed the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for two consecutive three Business Days;
(f) the The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Internal Revenue Code with regard to any assets of the Borrower or the Seller or any material portion of the assets of the Borrower (other than a Permitted Lien)MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrowerany MFN Entity and such Lien shall not have been released within 30 days;
(i) any Any Transaction Document or any lien or security interest Lien granted thereunder by the Borrower any MFN Entity, shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrowerany MFN Entity; or (ii) the Borrower or the Investment Manager or any other party MFN Entity shall, directly or indirectly, contest in any manner the such effectiveness, validity, binding nature or enforceability of any Transaction Documentenforceability; or (iii) any security interest Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the BorrowerMFN Entities;
(h) an Investment Manager A Servicer Termination Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereofoccurred;
(i) the Borrower MFN or the Investment Manager any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate a principal amount of $250,000 or greater 5,000,000 (or or, in the case of the Investment Manager Borrower and the Seller, $1,000,000 50,000) or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Managerany MFN Entity, as applicable, or any other event, shall occur and such default or event 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 accelerate, or to permit the acceleration of, the maturity of such 104 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) There shall occur a Change "termination event" or "event of Control shall have occurreddefault" or similar event under any other Transaction Document;
(k) either The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Borrower shall become required to register as an “investment company” within Determination Dates occurring in the meaning months of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act April through November or (ii) FS Investment Corporation III ceases 7%, with respect to be a “business development company” within the meaning Determination Dates occurring in the months of the 1940 ActDecember through March;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms As of any Transaction Document Distribution Date, the amount in accordance with Section 7.3(bthe Reserve Account is less than the Minimum Reserve Account Amount, and such deficiency is not cured on or prior to the immediately succeeding Distribution Date;
(m) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation A notice of termination with respect to the management and distribution of funds received Lockbox Agreement or a Blocked Account Agreement with respect to the CollateralTransferred Receivables shall have been delivered, or a termination of the Lockbox Agreement or Blocked Account Agreement shall have otherwise occurred, and a replacement Lockbox Bank or Blocked Account Bank reasonably acceptable to the Agent shall not have executed a Lockbox Agreement or Blocked Account Agreement with respect to the Transferred Receivables in form and substance satisfactory to the Agent within 30 days of such notice;
(in) failure A Change of Control shall occur with respect to MFN and the Borrower Agent shall not have provided its written consent thereto or, in connection with any Proposed MFN Transaction, the Agent shall have delivered a No Consent Notice to maintain at least one Independent Manager, or (ii) MFN and the removal Agent shall not have accompanied such notice with Notice of any Independent Manager without cause or prior written Firm Take-Out Commitment unless MFN promptly provides another notice to the Administrative Agent and each Agent that such Proposed MFN Transaction has been abandoned;
(in each case as required by o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the organization documents Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive days;
(p) Subject to Section 7.2 of the Borrower) or (iii) an Independent Manager Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower which is not preshall cease to be a direct or indirect wholly-approved by the Required Lenders owned subsidiary of MFN;
(q) One or more final judgments shall be appointed without entered by any court or courts against any MFN Entity for the consent payment of money which exceed $50,000 in the aggregate in the case of the Required Lenders; provided thatSeller or the Borrower and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary which are not fully covered by insurance or, in the case of each MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of clauses (i) and (ii)MFN which have been delivered to the Agent in accordance herewith; or a warrant of attachment or execution or similar process shall be issued or levied against property of any MFN Entity which, together with all other such property of any MFN Entity subject to other such process, exceeds in value $50,000 in the aggregate in the case of the Seller or the Borrower shall have five (5) Business Days to replace any Independent Manager upon and $5,000,000 in the death or incapacitation aggregate in the case of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement MFN or any other Transaction Document without first obtaining Contributing Subsidiary, and within thirty (30) days after the specific written consent of the Required Lenderseach Lenderentry, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a finalissue or levy thereof, non-appealable judgment against the Borrower such judgment, warrant or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent process shall not have received evidence satisfactory to it that an insurance provider for been paid or discharged or stayed pending appeal, or if, after the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment expiration of any material portion of the property of the Borrower such stay, such judgment, warrant or the Investment Manager which has process shall not have been released paid or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligationsdischarged; or
(r) during MFN shall fail to maintain the Revolving Period, Required Cash Balance;
(s) The average of the Minimum Equity Condition is not satisfied and Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such condition continues unremedied for two 4.5% shall be reduced to 4.3% with respect to computations of the Servicer Delinquency Ratios as of the last day of the March through September (2inclusive) consecutive Business DaysCollection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Sources: Receivables Financing Agreement (MFN Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager Servicer hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two three (3) Business Days;
(b) the Borrower or the Investment Manager Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 10.11, Section 10.16 and Section 10.16 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager Servicer made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Servicer to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Servicer or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two three (3) consecutive Business DaysDays (or, if an Equity Cure Notice was delivered within three (3) Business Days after the occurrence of such event, such condition continues unremedied for twelve (12) Business Days thereafter) (or such longer period as consented to by the Facility Agent in its sole discretion in the event the next monthly equity subscription into the Parent is not scheduled to occur until after the expiration of such period);
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 430 of the Code or Section 303(k) or 4068 of ERISA with regard respect to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Servicer or any other party Affiliate thereof shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager a Servicer Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager Servicer $1,000,000 25,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment ManagerServicer, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager Servicer to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral, in each case, subject to the grace periods in Section 13.1 to the extent applicable, or otherwise, in no case exceeding three (3) consecutive Business Days;
(l) (i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause Cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death death, resignation or incapacitation of the current Independent Manager;
(nm) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document USActive 57084911.14 -117- without first obtaining the specific written consent of the Required Lenderseach LenderMajority Lenders, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(on) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager Servicer (i) in an amount in excess of $250,000 (or, with respect to the Investment ManagerServicer, $1,000,00025,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment ManagerServicer, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment ManagerServicer, $1,000,00025,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager Servicer which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(po) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that neither Dechert LLP or nor any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the BorrowerBorrower being substantively consolidated into the Equityholder upon an Insolvency Event with respect to the Equityholder;
(qp) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(rq) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business DaysDays or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days (or such longer period as consented to by the Facility Agent in its sole discretion in the event the next monthly equity subscription into the Parent is not scheduled to occur until after the expiration of such period).
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager Servicer hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager Servicer made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Servicer to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Servicer or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for (x) two consecutive Business Days or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager a Servicer Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager Servicer $1,000,000 5,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment ManagerServicer, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager Servicer to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(l) (i) failure of the Borrower to maintain at least one Independent Manager, Manager or (ii) the removal of any Independent Manager without cause Cause or prior written notice to the Administrative Facility Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders); provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(nm) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderMajority Lenders, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(on) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager Servicer (i) in an amount in excess of $250,000 (or, with respect to the Investment ManagerServicer, $1,000,0005,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment ManagerServicer, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment ManagerServicer, $1,000,0005,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager Servicer which has not been released or provided for to the reasonable satisfaction of the Administrative Facility Agent within 30 days after the making thereof;
(po) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert neither Weil, Gotshal & ▇▇▇▇▇▇ LLP or nor any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the BorrowerBorrower being substantively consolidated into the Equityholder upon an Insolvency Event with respect to the Equityholder;
(qp) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(rq) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business Days or (y) if an Equity Cure Notice was delivered with respect to such event, twelve (12) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders Administrative Agent shall be appointed without the consent of the Required LendersAdministrative Agent; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderAdministrative Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager TPVC (in any capacity) hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, Advance which default shall continue for two (2) Business Days;
(b) The Borrower, the Borrower Collateral Manager or the Investment Manager TPVC (in any capacity) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section Sections 10.6, 10.7, Section 10.9, Section 10.11 10.10 and Section 10.16 10.23, as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Facility Agent to the Borrower Borrower, the Collateral Manager or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofTPVC;
(c) any Any representation or warranty of the Borrower Borrower, the Collateral Manager or the Investment Manager TPVC (in any capacity) made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower Borrower, the Collateral Manager or the Investment Manager TPVC (in any capacity) to the Administrative Agent, any Facility Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportDistribution Date Statement) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation Contract if such breach is not a willful breach and payment in respect of such Contract is required to be made under Section 7.14, and either the Repurchase Amount of such Contract shall have been paid in full by the Borrower complies with its obligations in or no repayment is required under Section 7.11 with respect to such Collateral Obligation7.14 because the Advances outstanding do not exceed the Borrowing Base and the Minimum Equity Condition is satisfied at the time of determination;
(d) an An Insolvency Event shall have occurred and be continuing with respect to either any of the Borrower, the Investment Manager Borrower or the EquityholderTPVC;
(e) the The aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base or the Maximum Availability, calculated in accordance with Section 1.2(h) and such condition continues unremedied for three (3) Business Days (or, if TPVC provides written evidence satisfactory to the Facility Agent within two consecutive (2) Business Days;
(f) the Internal Revenue Service shall file Days of receipt of notice of a lien pursuant that they intend to Section 6323 of the Code with regard make capital calls in an aggregate amount sufficient to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to prioritycure such failure, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent ManagerDays);
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager Servicer hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two three Business Days;
(b) failure on the part of the Borrower duly to observe or the Investment Manager shall fail to perform or observe in any other term, respect any covenant or agreement contained of the Borrower set forth in this Agreement, Agreement or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such which failure shall remain continues unremedied for a period of thirty (30) 30 days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower by the Collateral Agent or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofAdministrative Agent;
(c) any representation representation, warranty or warranty statement of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any certificate, report or other Transaction Document (including any Monthly Report) writing delivered pursuant hereto shall prove to have been be false or incorrect in any material respect as of the time when the same shall have been made or deemed to have been made and the same continues unremedied for a period of thirty (30) within 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied thereof shall have been given to the Borrower by the Collateral Agent or the Investment ManagerAdministrative Agent, and (ii) the date on circumstance or condition in respect of which a Responsible Officer of the Borrower such representation, warranty or the Investment Manager acquires knowledge thereofstatement was incorrect shall not have been eliminated or otherwise cured; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Borrower or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base Base, and such condition continues unremedied for two (2) consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien)Borrower, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien Lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of a Servicer Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the failure of the Borrower to make any payment when due (after giving effect to any related grace period) under one or the Investment Manager shall fail more agreements for borrowed money to pay any principal of or premium or interest on any Indebtedness having which it is a party in an aggregate principal amount in excess of $250,000 or greater (250,000, individually or in the case aggregate; or the occurrence of the Investment Manager $1,000,000 any event or greater), 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 condition that gives rise to a right of acceleration with respect to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness recourse debt in excess of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis$250,000;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become be required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower Borrower, the Equityholder or the Investment Manager Servicer to (i) make any payment or deposit (including, without limitation, (x) with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified PartyDocuments and (y) depositing all Reference Asset Collections into the Reference Asset Account) required by the terms of any Transaction Document in accordance with Section 7.3(b), Section 8.1(f) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause Cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders Administrative Agent shall be appointed without the consent of the Required LendersAdministrative Agent; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderAdministrative Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 30 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP M▇▇▇▇ & V▇▇ ▇▇▇▇▇ PLLC or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations;
(r) the Minimum Equity Test is not satisfied and such condition continues unremedied for three (3) consecutive Business Days; or
(rs) during the Revolving Period, Reference Asset Aggregate Amount fails to be at least equal to the Reference Asset Minimum Equity Condition is not satisfied Amount and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, which default shall continue for two Business DaysFees;
(bi) the The Borrower or the Investment Manager shall fail to perform or observe any other term, covenant (other than the covenant contained in Section 11.5) or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.6 and 11.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after the earlier to occur of (i) the date on which knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Agent or the Insurer to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of Borrower shall fail to observe the Borrower or the Investment Manager acquires knowledge thereofcovenant contained in Section 11.5 for five consecutive days;
(c) any Any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower to the Agent or the Investment Manager to the Administrative Agent, any Agent or any Lender Insurer for purposes of or in connection with this Agreement or any other 86 94 Transaction Document (including any Monthly Reportcertificates delivered pursuant to Section 7.1.3 and any Servicer's Certificate or Borrowing Base Certificate delivered pursuant to Section 11.4) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofmade; provided, provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation Eligible Receivable if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) as a result thereof an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepaymentSection 14.1(a) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Daysoccur.
Appears in 1 contract
Sources: Receivables Financing Agreement (Acc Consumer Finance Corp)
Facility Termination Events. Each of the following shall --------------------------- constitute a Facility Termination Event under this Agreement:
(a) any default Default in the payment when due of (i) any principal of any Advance Advance, which default shall continue unremedied for one Business Day, or (ii) default in the payment of any other amount payable by the Borrower or the Investment Manager hereunder, including including, without limitation, any Yield on any Advance, any Undrawn Fee Advance or any other Fee, in each case, Fees which default shall continue for two one Business DaysDay; or the Borrower shall fail to comply with the Clean-Up Requirement during any Clean-Up Period;
(b) the The Borrower or the Investment Manager AFS (in any capacity) or any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, Agreement or in any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7Sections 11.7 and 11.8, Section 10.9, Section 10.11 and Section 10.16 ------------- ---- as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty 30 days (30two Business Days with respect to Section 11.6) days after the earlier to occur of (i) the date on which ------------ knowledge thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereofAFS;
(c) any Any representation or warranty of the Borrower or the Investment Manager AFS (in any capacity) or any Seller made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower Borrower, AFS or any Seller to the Agent or the Investment Manager to the Administrative Agent, any Agent or any Lender Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly ReportServicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3) shall prove to have been false ----------- or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) and, within 30 days (if such failure can be remedied) after the earlier to occur of (i) knowledge thereof by a Responsible Officer of the Borrower or AFS, as the case may be, and the date on which written notice of such failure requiring the same to be remedied thereof shall have been given to the Borrower or AFS, as the Investment Managercase may be, and (ii) by the date on Agent, the circumstances or condition in respect of which a Responsible Officer of the Borrower such representation, warranty or the Investment Manager acquires knowledge thereofstatement was incorrect shall not have been eliminated or otherwise cured; provided, provided that no breach shall be deemed to occur hereunder in respect of any -------- representation or warranty relating to the “eligibility” eligibility of any Collateral Obligation if Receivable on its Purchase Date to the Borrower complies extent AFS has repurchased such Receivable in accordance with its obligations in Section 7.11 with respect to such Collateral Obligationthe provisions hereof or of the Purchase Agreement;
(d) an Insolvency An Event of Bankruptcy shall have occurred and be remain continuing with respect to either AmeriCredit Corp., the Borrower, the Investment Manager AFS or the Equityholderany Seller;
(e) the The aggregate principal amount of all Advances and Accrued Expenses outstanding hereunder exceeds on any day shall exceed the Borrowing Base on such day, and such condition continues unremedied for two consecutive one Business Days;Day (such excess referred to as the "Borrowing Base Deficiency"); -------------------------
(f) the The Internal Revenue Service shall file notice of a lien Lien pursuant to Section 6323 of the Internal Revenue Code with regard to any assets of the Borrower or any material portion of the assets of the Borrower (other than a Permitted Lien)AmeriCredit Corp., AFS or any Seller and such Lien shall not have been released within 30 days, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien Lien pursuant to Section 4068 of ERISA with regard to any of the assets of AmeriCredit Corp., the Borrower, a Seller or AFS and such Lien shall not have been released within 30 days;
(i) any Any Transaction Document or any lien or security interest Lien granted thereunder by the Borrower Borrower, shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or or
(ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the such effectiveness, validity, binding nature or enforceability of any Transaction Documentenforceability; or or
(iii) any security interest Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Receivables Financing Agreement (Americredit Financial Services of Canada LTD)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager Servicer hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two twothree (3) Business Days;
(b) the Borrower or the Investment Manager Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 10.11, Section 10.16 and Section 10.16 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) days after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager Servicer made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager Servicer to the Administrative Facility Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment ManagerServicer, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager Servicer acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 7.12 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager Servicer or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for three (x3) two consecutive Business Days;Days (or (y), if an Equity Cure Notice was delivered with respect towithin three (3) Business Days after the occurrence of such event, such condition continues unremedied for twelve (12) consecutive Business Days thereafter) (or such longer period as consented to by the Facility Agent in its sole discretion in the event the next monthly equity subscription into the Parent is not scheduled to occur until after the expiration of such period); USActive 31637433.4 -122-
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien), or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 430 of the Code or Section 303(k) or 4068 of ERISA with regard respect to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders shall be appointed without the consent of the Required Lenders; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach Lender, which consent may be withheld in the exercise of itseach Lender’s sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 (or, with respect to the Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Investment Manager, $1,000,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) any default in the payment when due of (i) any principal of any Advance or (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including any Yield on any Advance, any Undrawn Fee or any other Fee, in each case, which default shall continue for two Business Days;
(b) the Borrower or the Investment Manager shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Section 10.7, Section 10.9, Section 10.11 and Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for a period of thirty (30) 30 days after knowledge by the earlier to occur of (i) Borrower or the date on which Investment Manager thereof or after written notice of such failure requiring the same to be remedied thereof shall have been given by the Administrative Agent to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof;
(c) any representation or warranty of the Borrower or the Investment Manager made or deemed to have been made hereunder or in any other Transaction Document or any other writing or certificate furnished by or on behalf of the Borrower or the Investment Manager to the Administrative Agent, any Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Collateral Obligation if the Borrower complies with its obligations in Section 7.11 with respect to such Collateral Obligation;
(d) an Insolvency Event shall have occurred and be continuing with respect to either the Borrower, the Investment Manager or the Equityholder;
(e) the aggregate principal amount of all Advances outstanding hereunder exceeds the Borrowing Base and such condition continues unremedied for two consecutive Business Days;
(f) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of the assets of the Borrower (other than a Permitted Lien)Borrower, or the PBGC Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower;
(i) any Transaction Document or any lien or security interest granted thereunder by the Borrower shall (except in accordance with its terms), in whole or in material part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower; or (ii) the Borrower or the Investment Manager or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document; or (iii) any security interest securing any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (except, as to priority, for Permitted Liens) against the Borrower;
(h) an Investment Manager Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) the Borrower or the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having an aggregate principal amount of $250,000 or greater (or in the case of the Investment Manager $1,000,000 100,000 or greater), 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 Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower or the Investment Manager, as applicable, or any other event, shall occur and such default or event 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 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 prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or any early amortization event, pay out event or other similar event (other than as a result of a voluntary prepayment) shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to any such Indebtedness if the effect of such event is to cause the principal of such Indebtedness to be amortized on an accelerated basis;
(j) a Change of Control shall have occurred;
(k) either (i) the Borrower shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or (ii) FS Investment Corporation III TCP Capital Corp. ceases to be a “business development company” within the meaning of the 1940 Act;
(l) failure on the part of the Borrower or the Investment Manager to (i) make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Person or Indemnified Party) required by the terms of any Transaction Document in accordance with Section 7.3(b) and Section 10.10 or (ii) otherwise observe or perform any covenant, agreement or obligation with respect to the management and distribution of funds received with respect to the Collateral;
(i) failure of the Borrower to maintain at least one Independent Manager, or (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative Agent and each Agent (in each case as required by the organization documents of the Borrower) or (iii) an Independent Manager of the Borrower which is not pre-approved by the Required Lenders Administrative Agent shall be appointed without the consent of the Required LendersAdministrative Agent; provided that, in the case of each of clauses (i) and (ii), the Borrower shall have five (5) Business Days to replace any Independent Manager upon the death or incapacitation of the current Independent Manager;
(n) the Borrower makes any assignment or attempted assignment of its respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Required Lenderseach LenderAdministrative Agent, which consent may be withheld in the exercise of itseach Lender’s its sole and absolute discretion;
(o) any court shall render a final, non-appealable judgment against the Borrower or the Investment Manager (i) in an amount in excess of $250,000 100,000 (or, with respect to the Investment Manager, $1,000,0002,500,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 30 days (or, with respect to the Investment Manager, 60 days days) of the making thereof or (ii) for which the Administrative Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Investment Manager, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 100,000 (or, with respect to the Investment Manager, $1,000,0002,500,000); or the attachment of any material portion of the property of the Borrower or the Investment Manager which has not been released or provided for to the reasonable satisfaction of the Administrative Agent within 30 days after the making thereof;
(p) the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Dechert S▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP or any other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) failure to pay, on the Facility Termination Date, all outstanding Obligations; or
(r) during the Revolving Period, the Minimum Equity Diversification Condition is not satisfied and such condition continues unremedied for two (2) consecutive Business Days.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (TCP Capital Corp.)