Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement: (a) Default in the payment when due of any principal of any Advance, or default in the payment of any other amount payable by the Borrower hereunder, including, without limitation, any Yield on any Advance or any Fees which default shall continue for one Business Day; (b) Any MFN Entity shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Sections 11.6, 11.7, 11.10, 12.2(a) and Article XIX, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 days after knowledge thereof by any MFN Entity or after written notice thereof shall have been given by the Agent to any MFN Entity; (c) Any representation or warranty of 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 Agent or the Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer'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, within 30 days after the earlier of knowledge thereof by a Responsible Officer, as the case may be, and the date written notice thereof shall have been given to any MFN Entity, as the case may be, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility of any Receivable on its Purchase Date to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution Agreement; (d) An Event of Bankruptcy shall have occurred and remain continuing with respect to any MFN Entity; (e) The aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three Business Days; (f) The Internal Revenue Service shall file notice of a 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 MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not have been released within 30 days; (i) Any Transaction Document or any Lien granted thereunder by any MFN Entity, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entity; or (ii) any MFN Entity shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN Entities; (h) A Servicer Termination Event shall have occurred; (i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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; (j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document; (k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March; (l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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; (n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned; (o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN; (q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or (r) MFN shall fail to maintain the Required Cash Balance; (s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or (t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: Receivables Financing Agreement (MFN Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) Default i. any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity ii. the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower 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 iii. any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An iv. an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(ei) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three 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) The vi. the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination viii. an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof or any other applicable section of this Agreement;
(i) MFN ix. the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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;
x. a Change of Control shall have occurred;
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 KKR Capital Corp. ceases to be a “business development company” within the meaning of the 1940 Act;
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;
(ji) There 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 Facility Agent and each Agent (in each case as required by the organization documents of the Borrower); provided that, in the case of each of clauses (i) and (ii), the Borrower shall occur a "termination event" have five (5) Business Days to replace any Independent Manager upon the death or "event incapacitation of default" the current Independent Manager;
xiv. the Borrower makes any assignment or similar event attempted assignment of its respective rights or obligations under this Agreement or any other Transaction DocumentDocument without first obtaining the specific written consent of the Majority Lender, which consent may be withheld in the exercise of its sole and absolute discretion;
(k) The average of xv. any court shall render a final, non-appealable judgment against the Monthly Extension Rates for four consecutive Determination Dates shall exceed Borrower or the Investment Manager (i) 4%in an amount in excess of $250,000 (or, with respect to the Determination Dates occurring in Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%for which the 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 Determination Dates occurring in Investment Manager, $1,000,000); or the months attachment of December through Marchany 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 Facility Agent within 30 days after the making thereof;
(l) As of xvi. the Borrower shall fail to qualify as a bankruptcy‑remote entity based upon customary criteria such that Dechert LLP or any Distribution Date, the amount in the 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) A notice of termination other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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 noticeBorrower;
(n) A Change of Control shall occur with respect xvii. failure to MFN and the Agent shall not have provided its written consent thereto orpay, in connection with any Proposed MFN Transaction, the Agent shall have delivered a No Consent Notice to MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
xviii. during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (r2) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: Loan Agreement (FS KKR Capital Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower 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 any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Administrative Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three two consecutive 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 of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the Pension Benefit Guaranty Corporation PBGC shall file notice of a Lien lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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, (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative 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 Administrative Agent shall be appointed without the consent of the Administrative 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 Administrative Agent, which consent may be withheld in the exercise of 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 Determination Dates occurring in Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%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 Determination Dates occurring in Investment Manager, $1,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Investment Manager which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Administrative Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy-remote entity based upon customary criteria such that Dechert LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
(r) MFN shall fail to maintain during the Required Cash Balance;
Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (s2) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 30 days after knowledge by the Borrower or the Investment Manager thereof by any MFN Entity or after written notice thereof shall have been given by the Administrative Agent to any MFN Entitythe Borrower or the Investment Manager;
(c) Any any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Administrative Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three two consecutive 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 MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 daysthe Borrower, or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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) 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, (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative 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 Administrative Agent shall be appointed without the consent of the Administrative 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 Administrative Agent, which consent may be withheld in the exercise of 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 $100,000 (or, with respect to the Determination Dates occurring in the months of April through November Investment Manager, $2,500,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 30 days (ii) 7%or, with respect to the Determination Dates occurring Investment Manager, 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 the months of December through March;
full subject to any deductibles not exceeding $100,000 (l) As of any Distribution Dateor, the amount in the 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) A notice of termination with respect to the Lockbox Agreement Investment Manager, $2,500,000); or a Blocked Account Agreement with respect 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 Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Administrative Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy-remote entity based upon customary criteria such that Sxxxxxxxxx Xxxxxx & Bxxxxxx LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
(r) MFN shall fail to maintain during the Required Cash Balance;
Revolving Period, the Minimum Diversification Condition is not satisfied and such condition continues unremedied for two (s2) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TCP Capital Corp.)
Facility Termination Events. Each of the following shall --------------------------- constitute a Facility Termination Event under this Agreement:
(a) Default in the payment when due of any principal of any Advance, which default shall continue unremedied for one Business Day, or default in the payment of any other amount payable by the Borrower hereunder, including, without limitation, any Yield on any Advance or any Fees which default shall continue for one Business Day; or the Borrower shall fail to comply with the Clean-Up Requirement during any Clean-Up Period;
(b) Any MFN Entity The Borrower or AFS (in any capacity) or any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed and, except in the case of the covenants and agreements contained in Sections 11.611.7 and 11.8, 11.7, 11.10, 12.2(a) and Article XIX, ------------- ---- as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 30 days (two Business Days with respect to Section 11.6) after ------------ knowledge thereof by any MFN Entity or after written notice thereof shall have been given by the Agent to any MFN EntityAFS;
(c) Any representation or warranty of any MFN Entity the Borrower or 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, AFS or any MFN Entity Seller to the Agent or the Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer'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, within 30 days after the earlier of knowledge thereof by a Responsible OfficerOfficer of the Borrower or AFS, as the case may be, and the date written notice thereof shall have been given to any MFN Entitythe Borrower or AFS, as the case may be, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility of any Receivable on its Purchase Date to the extent the Seller AFS has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution Purchase Agreement;
(d) An Event of Bankruptcy shall have occurred and remain continuing with respect to AmeriCredit Corp., the Borrower, AFS or any MFN EntitySeller;
(e) The aggregate principal amount of all Advances plus the and Accrued Expenses outstanding on any day shall exceed the Borrowing Base on such day (a "Borrowing Base Deficiency") day, and such condition continues unremedied for three one Business Days;Day (such excess referred to as the "Borrowing Base Deficiency"); -------------------------
(f) The Internal Revenue Service shall file notice of a 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 MFN AmeriCredit Corp., AFS or any Contributing Subsidiary Seller and such Lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity AmeriCredit Corp., the Borrower, a Seller or AFS and such Lien shall not have been released within 30 days;
(i) Any Transaction Document or any Lien granted thereunder by any MFN Entitythe Borrower, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entitythe Borrower; or or
(ii) the Borrower or any MFN Entity other party shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or or
(iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN EntitiesBorrower;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Servicer hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one twothree (3) Business DayDays;
(b) Any MFN Entity the Borrower or the Servicer 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10Section 10.11, 12.2(a) Section 10.16 and Article XIXSection 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower or the Servicer, and (ii) the date on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof;
(c) Any any representation or warranty of any MFN Entity (in any capacity) the Borrower or the 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 any MFN Entity the Borrower or the Servicer to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Servicer, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.12 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Servicer or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") 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 the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the Pension Benefit Guaranty Corporation shall file notice of a Lien 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any Transaction Document or any Lien granted thereunder by any MFN Entity, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entity; or (ii) any MFN Entity shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN Entities;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Facility Termination Events. Each of the following shall constitute a “Facility Termination Event Event” under this Agreement:
(a) Default the Borrower shall fail to pay any 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 any principal of any Advanceclause (y), or default in the payment of any other amount payable by the Borrower hereunder, including, without limitation, any Yield on any Advance or any Fees which default shall continue such failure continues for one two (2) Business DayDays;
(b) Any MFN Entity the Borrower, the Equityholder or the Services Provider 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10Section 10.11, 12.2(a) and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower or the Services Provider, and (ii) the date on which a Responsible Officer of the Borrower or the Services Provider acquires knowledge thereof (after reasonable inquiry);
(c) Any any representation or warranty of any MFN Entity (in any capacity) the Borrower, the Equityholder or the 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 any MFN Entity the Borrower or the Services Provider to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Services Provider, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Services Provider acquires knowledge thereof (after reasonable inquiry); provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if either (i) the Borrower complies with its Purchase Date to the extent the Seller has repurchased such Receivable obligations in accordance with the provisions hereof or of the Sale and Contribution Agreement;
(d) An Event of Bankruptcy shall have occurred and remain continuing Section 7.12 with respect to any MFN Entity;
such Collateral Obligation or (eii) The 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 plus the Accrued Expenses outstanding on any day shall hereunder does not exceed the Borrowing Base on Base;
(d) either (i) an Insolvency Event shall have occurred and be continuing with respect to the Borrower or (ii) an Insolvency Event shall have occurred and be continuing with respect to the Equityholder and an Equityholder Credit Event Cure has not been successfully completed within fifteen (15) Business Days of such day occurrence;
(e) other than solely as a "result of a Specified Borrowing Base Deficiency") 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 three (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 Internal Revenue Code with regard to any assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not have been released within 30 days;
(i) Any any Transaction Document or any Lien granted thereunder by 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Services Provider or any MFN Entity other Person shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest granted under any Transaction Document securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against (except, as to priority, for Permitted Liens);
(g) a Services Provider Event of Default shall have occurred and be continuing past any applicable notice or cure period provided in the MFN Entitiesdefinition thereof 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;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary the Borrower shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $50,000) 250,000 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 any MFN Entity, as applicablethe Borrower, 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, or to permit the acceleration of, accelerate 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;
(i) a Change of Control shall have occurred;
(j) There either (i) the Borrower shall occur 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) Owl Rock Capital Corporation ceases to be a "termination event" or "event “business development company” within the meaning of default" or similar event under any other Transaction Documentthe 1940 Act;
(k) The average failure on the part of the Monthly Extension Rates for four consecutive Determination Dates shall exceed Borrower, the Equityholder or the Services Provider to (i) 4%make any payment or deposit (including, without limitation, with respect to remittance of Principal Collections and Interest Collections or any other payment or deposit required to be made by the Determination Dates occurring 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 the months of April through November accordance with Section 7.3(b) and Section 10.10 or (ii) 7%otherwise observe or perform any covenant, agreement or obligation with respect to the Determination Dates occurring in management and distribution of funds received with respect to the months of December through MarchCollateral and such failure under this clause (ii) continues for two (2) Business Days;
(l) As (i) failure of the Borrower to maintain at least one Independent Manager or (ii) the removal of any Distribution DateIndependent Manager without Cause or prior written notice to the Facility Agent and each Agent (in each case as required by the Constituent Documents of the Borrower); provided that, in the case of each of clauses (i) and (ii), the amount in Borrower shall have five (5) Business Days to replace any Independent Manager upon the Reserve Account is less than resignation, removal for cause, death or incapacitation of the Minimum Reserve Account Amount, and such deficiency is not cured on or prior to the immediately succeeding Distribution Datecurrent Independent Manager;
(m) A notice the Borrower makes any assignment or attempted assignment of termination with respect to the Lockbox its respective rights or obligations under this Agreement or a Blocked Account Agreement with respect to any other Transaction Document without first obtaining the Transferred Receivables shall have been delivered, or a termination specific written consent of the Lockbox Agreement Facility Agent, which consent may be withheld in the exercise of its sole and absolute discretion;
(i) any court shall render a final, non-appealable judgment against the Borrower (x) in an amount in excess of $250,000 which shall not be satisfactorily stayed, discharged, vacated, set aside or Blocked Account Agreement shall have otherwise occurred, and a replacement Lockbox Bank satisfied within 60 days of the making thereof or Blocked Account Bank reasonably acceptable to (y) for which the Facility Agent shall not have executed a Lockbox Agreement received evidence satisfactory to it that an insurance provider for the Borrower has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000; or Blocked Account Agreement with respect (ii) the attachment of any material portion of the property of the Borrower which has not been released or provided for to the Transferred Receivables in form and substance satisfactory to reasonable satisfaction of the Facility Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandonedmaking thereof;
(o) The Consolidated Total Adjusted Equity of MFN at the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP or any time shall be less than other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysBorrower;
(p) Subject to Section 7.2 of the Contribution Agreement, at any of the Contributing Subsidiariestime, the Seller 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 (unless, upon request by the Borrower Borrower, the Facility Agent has given its prior written consent to extend such period to thirteen (13) consecutive Business Days (which consent shall cease to not be a direct unreasonably withheld, delayed or indirect wholly-owned subsidiary of MFNconditioned);
(q) One or more final judgments a Specified Borrowing Base Breach shall be entered by any court or courts against any MFN Entity have occurred and continue unremedied for the payment shorter of money which exceed $50,000 in the aggregate in the case of the Seller or the Borrower (x) 180 consecutive days 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30y) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedtwo consecutive Distribution Dates; or
(r) MFN shall fail an ERISA Event occurs that, alone or together with all other ERISA Events that have occurred, would reasonably be expected to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%have a Material Adverse Effect.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower 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 any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Administrative Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three two consecutive 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 of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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 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, (ii) the removal of any Independent Manager without cause or prior written notice to the Administrative 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 Administrative Agent shall be appointed without the consent of the Administrative 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 Administrative Agent, which consent may be withheld in the exercise of 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 Determination Dates occurring in Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%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 Determination Dates occurring in Investment Manager, $1,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Investment Manager which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Administrative Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy-remote entity based upon customary criteria such that Dechert LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
(r) MFN shall fail to maintain during the Required Cash Balance;
Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (s2) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Servicer hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one three (3) Business DayDays;
(b) Any MFN Entity the Borrower or the Servicer 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 Sections 11.6Section 10.9, 11.7Section 10.11, 11.10, 12.2(a) Section 10.16 and Article XIXSection 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower or the Servicer, and (ii) the date on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof;
(c) Any any representation or warranty of any MFN Entity (in any capacity) the Borrower or the 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 any MFN Entity the Borrower or the Servicer to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Servicer, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.12 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Servicer or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for 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 the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the Pension Benefit Guaranty Corporation shall file notice of a Lien 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Servicer or any MFN Entity Affiliate thereof shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A a Servicer Termination Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Servicer $50,000) 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 any MFN Entitythe Borrower or the Servicer, 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average failure on the part of the Monthly Extension Rates for four consecutive Determination Dates shall exceed Borrower or the Servicer to (i) 4%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 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 or (ii) the removal of any Independent Manager without Cause or prior written notice to the Facility Agent and each Agent (in each case as required by the organization documents of the Borrower); 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, resignation or incapacitation of the current Independent Manager;
(m) 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 Majority Lenders, which consent may be withheld in the exercise of its sole and absolute discretion;
(n) any court shall render a final, non-appealable judgment against the Borrower or the Servicer (i) in an amount in excess of $250,000 (or, with respect to the Determination Dates occurring in Servicer, $25,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%for which the Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Servicer, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Determination Dates occurring in Servicer, $25,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Servicer which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Facility Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandonedmaking thereof;
(o) The Consolidated Total Adjusted Equity of MFN at the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that neither Dechert LLP nor any time shall be less than other reputable counsel could render a substantive nonconsolidation opinion with respect to the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysBorrower being substantively consolidated into the Equityholder upon an Insolvency Event with respect to the Equityholder;
(p) Subject failure to Section 7.2 of pay, on the Contribution AgreementFacility Termination Date, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;all outstanding Obligations; or
(q) One during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business Days or more final judgments shall be entered (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 any court or courts against any MFN Entity for the payment of money which exceed $50,000 Facility Agent in its sole discretion in the aggregate in event the case of next monthly equity subscription into the Seller or the Borrower and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary which are Parent is not fully covered by insurance or, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of MFN which have been delivered scheduled 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, occur until after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%period).
Appears in 1 contract
Samples: 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) i. Default in the payment when due of any principal of any Advance, which default shall continue unremedied for one Business Day, or default in the payment of any other amount payable by the Borrower or Drive (in any capacity) hereunder, including, without limitation, any Yield Interest on any Advance or any Fees which default shall continue for one Business Day;
ii. The Borrower or Drive (bin any capacity) 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 Sections 11.6, 11.7, 11.10, 12.2(a) 11.7 and Article XIX11.8, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 30 days (two days with respect to Section 11.6) after knowledge thereof by any MFN Entity or after written notice thereof shall have been given by the Agent to any MFN Entitythe Borrower or Drive;
(c) iii. Any representation or warranty of any MFN Entity the Borrower or 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 Drive (in any MFN Entity capacity) to the Agent or the Lenders for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Confirmation) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 days after the earlier of knowledge thereof by a Responsible Officer, as the case may be, and the date written notice thereof shall have been given to any MFN Entity, as the case may be, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise curedmade; provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to eligibility the "eligibility" of any Receivable on its Purchase Date to the extent the Seller has repurchased if such Receivable in accordance with shall have been purchased or repurchased by the provisions hereof Servicer or of the Sale and Contribution AgreementSeller;
(d) iv. An Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entitythe Borrower or Drive;
(e) v. The aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three one Business DaysDay (such excess referred to as the "Borrowing Base Deficiency");
(f) vi. The Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary Drive and such Lien lien shall not have been released within 30 days5 Business Days, or the 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 any MFN Entity the Borrower or Drive and such Lien lien shall not have been released within 30 days5 Business Days;
vii. (i) Any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entitythe Borrower, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entity; or (ii) any MFN Entity shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN Entities;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedBorrower; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: Receivables Financing Agreement (Firstcity Financial Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower 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 any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Administrative Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three two consecutive 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 of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the Pension Benefit Guaranty Corporation PBGC shall file notice of a Lien lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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 Determination Dates occurring in Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%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 Determination Dates occurring in Investment Manager, $1,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Investment Manager which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Administrative Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy-remote entity based upon customary criteria such that Dechert LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
(r) MFN shall fail to maintain during the Required Cash Balance;
Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (s2) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: 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) Default in the payment when due of any principal of any Advance, which default shall continue unremedied for one Business Day, or default in the payment of any other amount payable by the Borrower hereunder, including, without limitation, any Yield on any Advance or any Fees which default shall continue for one Business DayFees;
(bi) Any MFN Entity The Borrower 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 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 Sections 11.6, 11.6 and 11.7, 11.10, 12.2(a) and Article XIX, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 30 days after knowledge thereof by any MFN Entity or after written notice thereof shall have been given by the Agent or the Insurer to any MFN Entitythe Borrower or (ii) the Borrower shall fail to observe the covenant contained in Section 11.5 for five consecutive days;
(c) Any representation or warranty of any MFN Entity (in any capacity) the Borrower 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 the Borrower to the Agent or the Lenders Insurer for purposes of or in connection with this Agreement or any other 86 94 Transaction Document (including any certificates delivered pursuant to Section 7.1.3 and any Servicer's Certificate or any Borrowing Base Confirmation Certificate delivered pursuant to Section 7.311.4) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 days after the earlier of knowledge thereof by a Responsible Officer, as the case may be, and the date written notice thereof shall have been given to any MFN Entity, as the case may be, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise curedmade; provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to eligibility of any Eligible Receivable on its Purchase Date to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution Agreement;
(d) An if as a result thereof an Event of Bankruptcy shall have occurred and remain continuing with respect to any MFN Entity;
(eDefault under Section 14.1(a) The aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three Business Days;
(f) The Internal Revenue Service shall file notice of a 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 MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not have been released within 30 days;
(i) Any Transaction Document or any Lien granted thereunder by any MFN Entity, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entity; or (ii) any MFN Entity shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN Entities;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%occur.
Appears in 1 contract
Samples: Receivables Financing Agreement (Acc Consumer Finance Corp)
Facility Termination Events. Each of the following shall constitute a Facility Termination Event under this Agreement:
(a) Default i. any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity ii. the Borrower or the Investment Manager 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 USActive 31506654.2531506654.28 agreements contained in Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower 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 iii. any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An iv. an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(ei) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three 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) The vi. the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination viii. an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof or any other applicable section of this Agreement;
(i) MFN ix. the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: 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) Default in the payment in full when due of any principal of any Advance, the Advance or default in the payment of any other amount payable by the Borrower hereunder, including, without limitation, including any Yield on 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 Advance failure or any Fees which default shall continue for one Business Daydelay of the Administrative Agent in withdrawing funds from the Escrow Account and applying such funds to payment of the Obligations;
(b) Any MFN Entity The Borrower 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 Sections 11.610.6, 11.710.7, 11.10, 12.2(a) 10.9 and Article XIX10.10, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 days 5 Business Days after knowledge thereof by any MFN Entity or after written notice thereof shall have been given by the Administrative Agent to any MFN Entitythe Borrower;
(c) Any representation or warranty of any MFN Entity (in any capacity) the Borrower 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 the Borrower to the Administrative Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer'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, within 30 days after the earlier of knowledge thereof by a Responsible Officer, as the case may be, and the date written notice thereof shall have been given to any MFN Entity, as the case may be, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility of any Receivable on its Purchase Date to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution Agreementmade;
(d) An Insolvency Event of Bankruptcy shall have occurred and remain continuing with respect to any MFN Entityof the Borrower or either Loan Seller;
(e) The aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three Business Days;
(f) 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 MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 daysthe Borrower, or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any Transaction Document or any Lien granted thereunder by any MFN Entity, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any MFN Entity; or (ii) any MFN Entity shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; or (iii) any Lien securing any Obligation shall, in whole or in part, not be or cease to be a perfected first priority security interest against the MFN Entities;
(h) A Servicer Termination Event shall have occurred;
(i) MFN or any Contributing Subsidiary shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $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 any MFN Entity, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to 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;
(j) There shall occur a "termination event" or "event of default" or similar event under any other Transaction Document;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%, with respect to the Determination Dates occurring in the months of April through November or (ii) 7%, with respect to the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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;
(n) A Change of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower, the Equityholder or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower, the Equityholder or the Investment Manager, and (ii) the date on which a Responsible Officer of the Borrower, the Equityholder or the Investment Manager acquires knowledge thereof;
(c) Any any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(ei) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three 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 the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 6321 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof or any other applicable section of this Agreement;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Investment Manager $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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 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 or (ii) the removal of any Independent Manager without cause or prior written notice to the Facility Agent and each Agent (in each case as required by the organization documents of the Borrower); 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 Majority Lender, which consent may be withheld in the exercise of 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 Determination Dates occurring in Investment Manager, $1,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%for which the 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 Determination Dates occurring in Investment Manager, $1,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Investment Manager which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Facility Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy-remote entity based upon customary criteria such that Dechert LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 whichFacility Termination Date, 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedoutstanding Obligations; or
(r) MFN shall fail to maintain during the Required Cash Balance;
Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for two (s2) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Servicer hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Servicer 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10Section 10.11 and, 12.2(a) Section 10.16 and Article XIXSection 10.24, as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower or the Servicer, and (ii) the date on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof;
(c) Any any representation or warranty of any MFN Entity (in any capacity) the Borrower or the 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 any MFN Entity the Borrower or the Servicer to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Servicer, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.12 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Servicer or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three (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 the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the Pension Benefit Guaranty Corporation shall file notice of a Lien 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Servicer or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A a Servicer Termination Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Servicer $50,000) 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 any MFN Entitythe Borrower or the Servicer, 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, or to permit the acceleration of, accelerate 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;
(j) There shall occur a "termination ; or any early amortization event" , pay out event or "event of default" or other similar event under any (other Transaction Document;
(kthan as a result of a voluntary prepayment) The average of shall continue after the Monthly Extension Rates for four consecutive Determination Dates shall exceed (i) 4%applicable grace period, with respect to the Determination Dates occurring if any, specified in the months of April through November agreement or (ii) 7%, with respect instrument relating to any such Indebtedness if the Determination Dates occurring in the months of December through March;
(l) As of any Distribution Date, the amount in the 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) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred 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 effect of such notice;
(n) A Change event is to cause the principal of Control shall occur with respect to MFN and the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the 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 Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease Indebtedness to be a direct or indirect wholly-owned subsidiary of MFNamortized on an accelerated basis;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 (inclusive) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%.
Appears in 1 contract
Samples: 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 any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Servicer hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Servicer 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 a period of thirty (30) days after knowledge thereof by any MFN Entity or after the earlier to occur of (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given by to the Agent to any MFN EntityBorrower or the Servicer, and (ii) the date on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof;
(c) Any any representation or warranty of any MFN Entity (in any capacity) the Borrower or the 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 any MFN Entity the Borrower or the Servicer to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Servicer, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Servicer acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.12 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Servicer or the Equityholder;
(e) The the aggregate principal amount of all Advances plus the Accrued Expenses outstanding on any day shall exceed hereunder exceeds the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three (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 the Internal Revenue Service shall file notice of a Lien lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days(other than a Permitted Lien), or the 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 any MFN Entity and such Lien shall not have been released within 30 daysthe Borrower;
(i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Servicer or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A a Servicer Termination Event of Default shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Servicer shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 250,000 or greater (or, or in the case of the Borrower and the Seller, Servicer $50,000) 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 any MFN Entitythe Borrower or the Servicer, 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average failure on the part of the Monthly Extension Rates for four consecutive Determination Dates shall exceed Borrower or the Servicer to (i) 4%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 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 or (ii) the removal of any Independent Manager without Cause or prior written notice to the Facility Agent and each Agent (in each case as required by the organization documents of the Borrower); 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;
(m) 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 Majority Lenders, which consent may be withheld in the exercise of its sole and absolute discretion;
(n) any court shall render a final, non-appealable judgment against the Borrower or the Servicer (i) in an amount in excess of $250,000 (or, with respect to the Determination Dates occurring in Servicer, $5,000,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 60 days of the months of April through November making thereof or (ii) 7%for which the Facility Agent shall not have received evidence satisfactory to it that an insurance provider for the Borrower or the Servicer, as applicable, has agreed to satisfy such judgment in full subject to any deductibles not exceeding $250,000 (or, with respect to the Determination Dates occurring in Servicer, $5,000,000); or the months of December through March;
(l) As attachment of any Distribution Date, material portion of the amount in property of the Reserve Account is less than Borrower or the Minimum Reserve Account Amount, and such deficiency is Servicer which has not cured on been released or prior provided for to the immediately succeeding Distribution Date;
(m) A notice of termination with respect to the Lockbox Agreement or a Blocked Account Agreement with respect to the Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Facility Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandonedmaking thereof;
(o) The Consolidated Total Adjusted Equity of MFN at the Borrower shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that neither Weil, Gotshal & Xxxxxx LLP nor any time shall be less than other reputable counsel could render a substantive nonconsolidation opinion with respect to the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysBorrower being substantively consolidated into the Equityholder upon an Insolvency Event with respect to the Equityholder;
(p) Subject failure to Section 7.2 of pay, on the Contribution AgreementFacility Termination Date, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease to be a direct or indirect wholly-owned subsidiary of MFN;all outstanding Obligations; or
(q) One during the Revolving Period, the Minimum Equity Condition is not satisfied and such condition continues unremedied for (x) two (2) consecutive Business Days or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of MFN which have been (y) if an Equity Cure Notice was 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 such event, twelve (inclusive12) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive Business Days.
Appears in 1 contract
Samples: 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) Default any default in the payment when due of (i) any principal of any Advance, Advance or default in the payment of (ii) any other amount payable by the Borrower or the Investment Manager hereunder, including, without limitation, including any Yield on any Advance Advance, any Undrawn Fee or any Fees other Fee, in each case, which default shall continue for one two Business DayDays;
(b) Any MFN Entity the Borrower or the Investment Manager 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 Sections 11.6Section 10.7, 11.7Section 10.9, 11.10, 12.2(a) Section 10.11 and Article XIX, Section 10.16 as to each of which no grace period shall apply, any such failure shall remain unremedied for 10 30 days after knowledge by the Borrower or the Investment Manager thereof by any MFN Entity or after written notice thereof shall have been given by the Facility Agent to any MFN Entitythe Borrower or the Investment Manager;
(c) Any any representation or warranty of any MFN Entity (in any capacity) 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 any MFN Entity the Borrower or the Investment Manager to the Facility Agent, any Agent or the Lenders any Lender for purposes of or in connection with this Agreement or any other Transaction Document (including any Servicer's Certificate or any Borrowing Base Confirmation delivered pursuant to Section 7.3Monthly Report) shall prove to have been false or incorrect in any material respect when made or deemed to have been made and, within 30 and the same continues unremedied for a period of thirty (30) days (if such failure can be remedied) after the earlier to occur of knowledge thereof by a Responsible Officer, as the case may be, and (i) the date on which written notice thereof of such failure requiring the same to be remedied shall have been given to any MFN Entitythe Borrower or the Investment Manager, as and (ii) the case may bedate on which a Responsible Officer of the Borrower or the Investment Manager acquires knowledge thereof; provided, by the Agent, the circumstances or condition in respect of which such representation, warranty or statement 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 eligibility the “eligibility” of any Receivable on Collateral Obligation if the Borrower complies with its Purchase Date obligations in Section 7.11 with respect to the extent the Seller has repurchased such Receivable in accordance with the provisions hereof or of the Sale and Contribution AgreementCollateral Obligation;
(d) An an Insolvency Event of Bankruptcy shall have occurred and remain be continuing with respect to any MFN Entityeither the Borrower, the Investment Manager or the Equityholder;
(e) The the aggregate principal amount of all Advances plus outstanding hereunder exceeds the Accrued Expenses outstanding on any day shall exceed Maximum Availability or, other than solely as a result of a Revaluation Borrowing Base Event, the Borrowing Base on such day (a "Borrowing Base Deficiency") and such condition continues unremedied for three two consecutive Business Days;
(f) The Internal Revenue Service the IRS shall file notice of a Lien pursuant to Section 6323 6321 of the Internal Revenue Code with regard to any assets of the Borrower or the Seller or any material portion of the assets of MFN or any Contributing Subsidiary and such Lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of any MFN Entity and such Lien shall not the Borrower, or an ERISA Event occurs that, alone or together with all other ERISA Events that have been released within 30 days;occurred, would reasonably be expected to have a Material Adverse Effect; -105-
(g) (i) Any any Transaction Document or any Lien lien or security interest granted thereunder by any MFN Entity, 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 any MFN Entitythe Borrower; or (ii) the Borrower or the Investment Manager or any MFN Entity other party shall, directly or indirectly, contest in any manner such the effectiveness, validity, binding nature or enforceabilityenforceability of any Transaction Document; or (iii) any Lien security interest 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 MFN EntitiesBorrower;
(h) A Servicer Termination an Investment Manager Event shall have occurredoccurred and be continuing past any applicable notice or cure period provided in the definition thereof;
(i) MFN the Borrower or any Contributing Subsidiary the Investment Manager shall fail to pay any principal of or premium or interest on any Indebtedness having a an aggregate principal amount of $5,000,000 (or, in the case of the Borrower and the Seller, $50,000) 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 any MFN Entitythe 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, or to permit the acceleration of, accelerate 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 a Change of Control shall occur a "termination event" or "event of default" or similar event under any other Transaction Documenthave occurred;
(k) The average of the Monthly Extension Rates for four consecutive Determination Dates shall exceed either (i) 4%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) 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, (ii) the removal of any Independent Manager without cause or prior written notice to the 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 Lenders, which consent may be withheld in the exercise of 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 $100,000 (or, with respect to the Determination Dates occurring in the months of April through November Investment Manager, $2,500,000) which shall not be satisfactorily stayed, discharged, vacated, set aside or satisfied within 30 days (ii) 7%or, with respect to the Determination Dates occurring Investment Manager, 60 days) of the making thereof or (ii) for which the 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 the months of December through March;
full subject to any deductibles not exceeding $100,000 (l) As of any Distribution Dateor, the amount in the 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) A notice of termination with respect to the Lockbox Agreement Investment Manager, $2,500,000); or a Blocked Account Agreement with respect 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 Transferred Receivables shall have been delivered, or a termination reasonable satisfaction 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 Facility Agent within 30 days of such notice;
(n) A Change of Control shall occur with respect to MFN and after the 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 MFN and the Agent shall not have accompanied such notice with Notice of Firm Take-Out Commitment unless MFN promptly provides another notice to the Agent that such Proposed MFN Transaction has been abandoned;
(o) The Consolidated Total Adjusted Equity of MFN at any time shall be less than the Minimum Total Adjusted Equity Amount Tangible Net Worth Amount at such time for any period of 20 consecutive daysmaking thereof;
(p) Subject to Section 7.2 of the Contribution Agreement, any of the Contributing Subsidiaries, the Seller or the Borrower shall cease fail to be qualify as a direct bankruptcy‑remote entity based upon customary criteria such that Eversheds Xxxxxxxxxx (US) LLP or indirect wholly-owned subsidiary of MFNany other reputable counsel could no longer render a substantive nonconsolidation opinion with respect to the Borrower;
(q) One or more final judgments shall be entered by any court or courts against any MFN Entity for the payment of money which exceed $50,000 in the aggregate in the case of the Seller 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 orfailure to pay, in the case of MFN or any Contributing Subsidiary, by reserves shown on the consolidated financial statements of MFN which have been delivered to Facility Termination Date, all outstanding Obligations;
(r) during 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 whichRevolving Period, together with all other the Minimum Diversification Condition is not satisfied and 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 and $5,000,000 in the aggregate in the case of MFN or any Contributing Subsidiary, and within thirty condition continues unremedied for two (302) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or dischargedconsecutive Business Days; or
(r) MFN shall fail to maintain the Required Cash Balance;
(s) The average of the Servicer Delinquency Ratios a Revaluation Borrowing Base Event shall have occurred and continue unremedied for the last day of each of the preceding three Collection Periods exceeds 4.5%; provided that such 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 ninety (inclusive90) Collection Periods; or
(t) The Portfolio Net Loss Ratio exceeds 15%consecutive days.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
