Liquidation Events. The following events shall be "LIQUIDATION EVENTS" hereunder: (a) Servicer (if KBK or any Affiliate of KBK is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE (II) below) and such failure shall remain unremedied for one Business Day or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days); or (b) Any representation or warranty made or deemed to be made by KBK or Seller (or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); or (c) Seller or KBK (individually or as Servicer) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or (i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or (e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or (i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or (g) the Default Ratio at any Cut-Off Date exceeds XXX; or (h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or (i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or (j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or (k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or (l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or (m) KBK or Seller is subject to a Change in Control; or (n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or (o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or (i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes; (q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended; (r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or (s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) (i) Servicer (if KBK Parent or any an Affiliate of KBK Parent is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer to provide any Servicer Report or Weekly Report when due hereunder (other than as referred or any obligation of Servicer pursuant to in CLAUSE (II) below) Section 8.02 and such failure shall remain unremedied for one more than three Business Day Days after written notice thereof shall have been given by the Administrator to Servicer (provided that no notice shall be required in the case of the failure to provide any Servicer Report when due) or (ii) Seller or Servicer (if Parent or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder within two (2) Business Days of when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or Seller (Seller, Parent or any of its officers) Originator under or in connection with this Agreement Agreement, any other Transaction Document, any Weekly Report or any Information Package Servicer Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect inaccurate in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller Seller, Parent or KBK (individually or as Servicer) any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than the covenant set forth in Section 8.05(e)) or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain continue unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) Business Days after (A) written notice thereof shall have been given by the Administrator to Seller or KBK by Parent, as the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgecase may be; or
(id) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money relating to Indebtedness in excess of $500,000 20,000,000 of, or guaranteed by, Parent or any Seller Party Subsidiary thereof, which default is a payment default or if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesacceleration; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Asset Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage interest to the extent of the Asset Interest in each Pool Asset, free and clear of any other Lien (other than a Lien arising solely as the result of any action taken by a Purchaser or the Administrator) or (ii) cease to create with respect to the items described in Section 9.01, or the interest of the Administrator (for the benefit of Purchasers) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any other Lien (other than a Lien arising solely as the result of any action taken by a Purchaser or the Administrator); or
(f) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller Parent or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectOriginator; or
(g) The average of the Default Ratio at Sales-Based Dilution Ratios for any three successive Cut-Off Date Dates exceeds XXX20%; or
(h) The average of the Delinquency Ratio at Default Ratios for any three successive Cut-Off Date Dates exceeds XXX5%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and ; or
(j) The average of the Asset Interest Delinquency Ratios for any three successive Cut-Off Dates is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitgreater than 10%; or
(k) There shall exist any event or occurrence that would reasonably be expected to have has caused a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator Parent is subject to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial PurchaseChange-in-Control; or
(m) KBK or Seller is subject to a Change in Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller5 Business Days.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Conmed Corp), Receivables Purchase Agreement (Conmed Corp)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) The Master Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is the Master Servicer) or the Seller (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of the Master Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this Section 10.1) and such failure shall remain unremedied for one Business Day or thirty (30) days after written notice thereof shall have been given by the Administrator to the Master Servicer, (ii) shall fail to make any payment or deposit to be made by it pursuant to Section 3.1(b) when due which failure shall continue for two (2) Business Days after the due date therefor, or (iii) shall fail to make any other payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten five (105) days)Business Days after the due date therefor; or
(b) Any representation or warranty made by any Seller Party or deemed to be made by KBK or Seller any Originator (or any of its officers) under or in connection with this Agreement or any Information Package other Transaction Document or any Settlement Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller or KBK (individually or provided, however, that except as Servicer) shall fail to perform or observe any other term, covenant or agreement contained provided in this Agreement clause (b), if such representation or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof warranty that shall have proven to have been given to Seller false or KBK incorrect in a material respect when made is susceptible of a cure, such representation or warranty is not so cured by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
earlier of (i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived thirty (with or without the passage of time or the giving of notice or both30) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to days from the date that the party making such representation or warranty becomes aware of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereofits incorrectness, or (ii) any material development not so disclosed has occurred in any litigation thirty (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I30) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.from
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lifestyle Furnishings International LTD)
Liquidation Events. The following events shall be ------------------ "LIQUIDATION EVENTSLiquidation Events" hereunder:: -------------------
(ai) Servicer (if KBK Seller or any its Affiliate of KBK is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belownext ----------- following) and such failure shall remain unremedied for one Business Day three calendar days or (ii) Servicer (if Seller or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any any representation or warranty made or deemed to be made by KBK Seller or Seller Servicer (or any of its officers) under or in connection with this Agreement (other than a breach of the representations set forth in Section 6.01(p)) or any Information Package or other information or report --------------- delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and such condition (other than a breach of the representations representation set forth in SECTION 6.02(DSection 6.01(l) as it pertains to each Pool --------------- Receivable being free and clear of certain liens) shall continue unremedied for a period of three Business Days after (i) written notice thereof by the Administrator or Relationship Bank to Seller or (Jii) for which the Originator Seller or Servicer has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)or obtains actual knowledge thereof; or
(c) Seller or KBK (individually or as Servicer) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five ten Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank to Seller or (Bii) Seller has or KBK has obtains actual knowledgeknowledge thereof; or
(id) A a default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party or Servicer, or in excess of $5,000,000 with respect to CHR, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables Receivables of Seller, Servicer, CHR or any Seller PartyAffiliate thereof, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables Receivables or the right of Seller, Servicer, CHR or any Seller Party Affiliate thereof, to reinvest in receivables Receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesReceivables; or
(e) An an Event of Bankruptcy shall have occurred and remain shall be continuing with respect to KBK Seller, Servicer or SellerCHR; or
(i) Any any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser Purchasers prior to the date of execution and delivery of this Agreement is pending against KBK or Seller Seller, Servicer, CHR or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE clause (Ii) or (IIii), in the ---------- ---- opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) prior to the Default Purchase Termination Date, (i) the Delinquency Ratio at for the three month period ending on any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notesexceed 2.00%;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Liquidation Events. The occurrence and continuation of any of the following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK any Transaction Party or any Affiliate of KBK thereof is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this Section 10.01) and such failure shall remain unremedied for one five (5) Business Day Days or (ii) Servicer or Transferor shall fail to make any payment or deposit to be made by it hereunder when due in respect of CP Costs, Earned Discount or the Transferee's Total Investment or interest accruing at the Default Rate, or any Transaction Party shall fail to observe, perform or comply with Section 7.02 or (and, iii) Servicer or Transferor shall fail to make any payment or deposit to be made by it hereunder other than as described in the case of payments under SECTION 13.02foregoing clause, (ii) and such failure shall remain unremedied for ten three (103) days)Business Days; or (iv) any Insurance Obligations shall not be paid when due; or
(bi) Any representation or warranty made or deemed to be made by KBK or Seller any Transaction Party (or any of its officers) under or in connection with this Agreement (other than any representation or warranty set forth in Sections 6.01 (k) or (l)) or any Information Package other Transaction Document or other information or report delivered pursuant hereto or thereto shall prove to have been false or incorrect in any material respect when made; or (ii) any representation or warranty made or deemed to be made by any Transaction Party (or any of its officers) in Sections 6.01 (k) or (l) shall prove to have been false or incorrect in any material respect when made and such inaccuracy remains unremedied for five (other than a breach of the representations set forth in SECTION 6.02(D5) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)Business Days; or
(c) Seller or KBK (individually or as Servicer) Any Transaction Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents (other than as described in Section 10.01(a)) on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgeDays; or
(id) A default WestPoint or any other Originator shall have occurred and be continuing under (1) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of $500,000 of10,000,000, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without when and as the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness same shall become due and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; payable or (ii2) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; fail to observe or (iii) perform any default under term, covenant, condition or agreement contained in any other agreement or instrument relating to the purchase evidencing or governing any Indebtedness (including any guaranty of receivables of any Seller Party, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, Indebtedness) if the effect of such default any failure referred to in this clause (2) is to terminate, or permit the termination of, the commitment of any party cause such Indebtedness to such agreement or instrument become due prior to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesstated maturity; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) Seller, Transferor, any Originator or Servicer (if KBK or any Affiliate of KBK is Servicer) (i) shall fail to perform or observe in any material respect any term, covenant or agreement that is an obligation of Seller, Transferor, any Originator or Servicer hereunder under the Transaction Documents (other than as referred to in CLAUSE clause (IIb) belownext following) and such failure shall remain unremedied for one Business Day fifteen days after (1) written notice thereof shall have been given by the Administrator to Seller, Transferor, any Originator or Servicer, as applicable, or (ii2) Seller, Transferor, any Originator or Servicer, as applicable, has actual knowledge thereof, and such failure shall have a Material Adverse Effect; or
(b) Seller, Transferor, any Originator or Servicer shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied for ten (10) days)more than one Business Day; or
(bc) Any representation or warranty made or deemed to be made by KBK the Seller, Transferor, any Originator or Seller (the Servicer under a Transaction Document or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); or
(c) Seller or KBK (individually or as Servicer) and shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part continue to be performed or observed and any such failure shall remain unremedied incorrect for five Business Days (or, in the case a period of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) fifteen days after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator to the Seller or the Relationship Bank Servicer (if Seller or its Affiliate is Servicer) or (Bii) Seller or KBK the Servicer (if Seller or its Affiliate is Servicer) has actual knowledgeknowledge thereof, and such incorrect statement shall have a Material Adverse Effect; provided, that with respect to the breach of the representations or warranties set forth in Section 6.01(j), compliance by Seller with the provisions of Section 3.02 in respect thereof shall be deemed to cure such breach; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(ed) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK the Seller, the Transferor, the Servicer or Sellerany Originator; or
(ie) Any litigation (includingOriginator, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) Transferor shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser become an "investment company" or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced company controlled by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(sf) An On any Settlement Date, the Average Excess Spread Percentage is less than 1.0%; or
(g) On any Settlement Date, the Average Monthly Principal Payment Rate Percentage is less than 6.0%; or
(h) On any Settlement Date, the Average Dilution Percentage is greater than 8.0%; or
(i) Any Originator, Seller, Transferor or Servicer (if Servicer is Seller or its Affiliate) is subject to a Change in Control; or
(j) Any Originator shall become unable for any reason to transfer Receivables to the Transferor pursuant to the First Tier Agreement; or the Transferor shall become unable for any reason to transfer Receivables to the Seller pursuant to the Second Tier Agreement; or
(k) On any Settlement Date (after giving effect to all allocations of funds on such date), the Senior Investor Balance shall exceed the Benchmark Amount by more than $100,000, and such condition shall be unremedied for more than five Business Days; or
(l) A Cap Replacement Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellerbe continuing.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Liquidation Events. The following events shall be THE FOLLOWING EVENTS SHALL BE "LIQUIDATION EVENTS" hereunderHEREUNDER:
(a) Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Servicer) or Seller (in the case of clause (iii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) or (iii) below) and such failure shall remain unremedied for ten Business Days, (ii) shall fail to deliver (x) any Weekly Information Package (except as permitted by Section 8.02(h)(i)(a)) and such failure shall remain unremedied for one Business Day day; (y) (if required) any Daily Information Package, and such failure shall remain unremedied for one day; or (iiz) any Information Package, or other report, statement or written information required to be delivered by Servicer hereunder and such failure shall remain unremedied for three Business Days, or (iii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied for ten (10) days)two Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any Information Package, Weekly Information Package or (if required) Daily Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and such condition (other than a breach of the representations representation set forth in SECTION 6.02(DSection 6.01(l) as it pertains to each Pool Receivable being free and clear of certain Liens (except for Liens which are not material individually or (J) for which in the Originator has satisfied its payment obligation under SECTION 3.5 aggregate and are terminated within ten days after any Seller Party obtains knowledge of the Sale Agreementexistence thereof); or
(c) Seller or KBK (individually or as Servicer) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain continue unremedied for five a period of ten Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivableshas actual knowledge thereof; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Servicer) or Seller (in the case of clause (iii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) below) and such failure shall remain unremedied for one three (3) Business Day Days, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(ci) Inacom shall fail to perform its obligations pursuant to Section 8.01(d), or (ii) any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five thirty (30) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank to any Seller Party or (B) any Seller or KBK Party has actual knowledgeknowledge thereof; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party or any Material Subsidiary, which default either (A) if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough of 45 days after the related Seller Party or Material Subsidiary has knowledge thereof or (B) is a failure to permit pay such indebtedness at maturity or results in the acceleration and any notice of default required to permit acceleration shall have been givensuch indebtedness; or (ii) a "Purchase and Sale Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller PartyParty or any Material Subsidiary, 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 (A) is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party or such Material Subsidiary to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesreceivables and such default continues unremedied, uncured or unwaived for a period of 45 days after the related Seller Party or Material Subsidiary has knowledge thereof or (B) is to terminate such commitment or right; or (iv) a default or trigger event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party or Material Subsidiary and such default or trigger event continues unremedied, uncured or unwaived for a period of 45 days after the related Seller Party or Material Subsidiary has knowledge thereof; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Servicer, any Seller Party, or Sellerany Material Subsidiary of any Seller Party; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller Parties to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or any Seller Parties or any Affiliate thereofMaterial Subsidiary and known to a Seller Party on the date hereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE clause (Ii) or (IIii), in the opinion of the AdministratorAdministrator or the Relationship Bank, has a reasonable likelihood of having a Material Adverse Effect; or
(gi) The Dilution Ratio at any Cut-Off Date exceeds 6% or (ii) the average of the Dilution Ratios for any three consecutive Cut-Off Dates exceeds 5%; or
(i) The Default Ratio at any Cut-Off Date exceeds XXX; or
2% or (hii) the Delinquency Ratio average of the Default Ratios at any three consecutive Cut-Off Date Dates exceeds XXX1.75%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the policies as to origination of Receivables or in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist Either (i) the Default to Liquidation Ratio at any event Cut-Off Date is greater than 2% or occurrence that would reasonably be expected (ii) the average of the Default to have a Material Adverse EffectLiquidation Ratios at any three consecutive Cut- Off Dates is greater than 1.75%; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator Inacom to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase; or
(m) KBK or Any Seller Party is subject to a Change in Change-in- Control; or
(n) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, Receivables or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawRelated Assets; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 daysThe 31-60 Delinquency Ratio at any Cut-Off Date exceeds 10%, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and 61-90 Delinquency Ratio at any Cut-Off Date exceeds 3.5% or (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by 91-120 Delinquency Ratio at any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the SellerCut-Off Date exceeds 2.5%.
Appears in 1 contract
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK Parent or any its Affiliate of KBK is Servicer) (i) shall fail to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belownext following) and such failure shall remain unremedied for one more than five Business Day Days or (ii) Seller or Servicer (if Parent or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK Seller or Seller (or any of its officers) Parent under or in connection with this Agreement Agreement, any other Transaction Document or any Information Package Servicer Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller or KBK (individually or as Servicer) Parent shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five fifteen (15) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given by the Administrator to Seller or KBK by Parent, as the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgecase may be; or
(id) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 5,000,000 of, or guaranteed by, Parent or any Seller Party Subsidiary thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such is a payment default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, or any other event, shall occur and shall continue after that continues beyond the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Asset Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage interest to the extent of the Asset Interest in each Pool Asset, free and clear of any other Lien or (ii) cease to create with respect to the items described in Section 9.01, or the interest of the Administrator (for the benefit of Purchaser) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any other Lien; or
(f) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller Parent or any Affiliate Subsidiary thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) The average of the Sales-Based Dilution Ratios for any three consecutive Cut-Off Dates exceeds 9%; or
(h) The Sales-Based Default Ratio at for any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX5%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest ; or
(j) The Delinquency Ratio for any Cut-Off Date is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitgreater than 10%; or
(k) There shall exist any event or occurrence that would reasonably be expected to have has caused, or has a reasonable possibility of causing, a Material Adverse EffectEffect (other than a Material Adverse Effect described in clause (i) of the definition thereof); or
(l) There shall have occurred Seller, any event which materially adversely impairs the ability of Seller Originator or the Originator Parent is subject to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial PurchaseChange-in-Control; or
(m) KBK or Seller is subject to a Change in Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days; or
(n) Parent sells, assigns (by operation of law or otherwise) or otherwise disposes of any of its assets, or any interest therein, other than (i) sales of inventory in the ordinary course of business, (ii) sales of surplus, damaged, worn or obsolete assets, or assets that are promptly being replaced, (iii) sales of assets on commercially reasonable terms, (iv) sales of receivables in connection with a securitization transaction, (v) sales to Subsidiaries, and (vi) sales of other assets, provided that the aggregate fair market value of such assets sold in any period of four consecutive fiscal quarters does not exceed the greater of (1) 25% of the Parent's Tangible Net Worth as of the last day of such fourth fiscal quarter and (2) $75,000,000; or
(o) Failure to obtain a Liquidity Agreement Parent makes any Investments other than (i) Permitted Investments, (ii) Investments existing on the date hereof, (iii) Investments in substitution for Subsidiaries, (iv) Investments in the then existing Liquidity Agreement on or before 30 days prior to nature of acquisitions, provided that the expiration aggregate amount of such acquisitions in any period of four consecutive fiscal quarters does not exceed 25% of Parent's Tangible Net Worth as of the commitments last day of such fourth fiscal quarter, (v) Investments in businesses related to data and information storage, and (vi) Investments not otherwise permitted by this subparagraph (o), provided that the aggregate amount of such Investments does not exceed the greater of (i) 25% of Parent's Tangible Net Worth as of the Liquidity Banks thereunder, or the early termination last day of the Liquidity Agreement as a result of default by Purchaser or a change in lawmost recently ended fiscal quarter and (ii) $50, 000,000; or
(p) Parent permits:
(i) A Downgrading Event with respect its Tangible Net Worth to a Liquidity Bank shall have occurred and been continuing for not be less than 45 days(A) at all times prior to the IPO, an amount equal to (1) its Tangible Net Worth as of March 31, 1998, minus (2) $25,000,000, plus (iii) 50% of Consolidated Net Income (not to be reduced by losses) from March 31, 1998 to the end of the most recently ended fiscal quarter and (B) at all times after the IPO, an amount equal to (i) 70% of the sum of its Tangible Net Worth as of the end of June, 1998, plus the net proceeds of the IPO, plus (iii) 50% of Consolidated Net Income (not to be reduced by losses) from the date of the IPO to the end of the most recently ended fiscal quarter.
(1) prior to the IPO, the EBITDAR Ratio to be less than (A)
2.25:1 for the fiscal quarter ending in June and September of 1998, (ii) B)
2.50:1 for the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement fiscal quarter ending in form and substance acceptable to Purchaser and December of 1998, (C)
2.75:1 for the Administratorfiscal quarter ending in March of 1999, and (iiiD) 3.00:1 for each fiscal quarter thereafter and (2) after the commitment of such Downgraded Liquidity Bank under IPO, the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied EBITDAR Ratio to the Commercial Paper Notes by be less than 1.50:1 for any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellerfiscal quarter.
Appears in 1 contract
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK Parent or any its Affiliate of KBK is Servicer) (i) shall fail to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belownext following) and such failure shall remain unremedied for one more than three Business Day Days or (ii) Seller or Servicer (if Parent or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder within two (2) Business Days of when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or Seller (Seller, Parent or any of its officers) Originator under or in connection with this Agreement Agreement, any other Transaction Document, any Daily Report, any Weekly Servicer Report or any Information Package Servicer Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller Seller, Parent or KBK (individually or as Servicer) any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) Business Days after (A) written notice thereof shall have been given by the Administrator to Seller or KBK by Parent, as the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgecase may be; or
(id) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 100,000 of, or guaranteed by, Parent or any Seller Party Subsidiary thereof, which default is a payment default or if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been givenacceleration; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, Parent or any Subsidiary thereof (other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrumentthan this Agreement), if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party Parent or such Subsidiary to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its an interest in receivables; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Asset Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage interest to the extent of the Asset Interest in favor of the Administrator, for ratable benefit of the Purchasers, in each Pool Asset, free and clear of any other Lien or (ii) cease to create with respect to the items described in Section 9.01, or the interest of the Administrator (for the ratable benefit of the Purchasers) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any other Lien; or
(f) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Seller, Parent or Sellerany Subsidiary thereof; or
(g) The Sales-Based Dilution Ratio for any Cut-Off Date exceeds 7%; or
(h) The Default Ratio for any Cut-Off Date exceeds 2%; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Weekly Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest ; or
(j) The Delinquency Ratio for any Cut-Off Date is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitgreater than 5%; or
(k) There shall exist any event or occurrence that would reasonably be expected to have has caused, or has a reasonable possibility of causing, a Material Adverse Effect; or
(l) There shall have occurred Seller, any event which materially adversely impairs the ability of Seller Originator or the Originator Parent is subject to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial PurchaseChange-in- Control; or
(m) KBK or Seller is subject to a Change in Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller5 Business Days.
Appears in 1 contract
Samples: Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Liquidation Events. The following events shall be liquidation events, (each a "LIQUIDATION EVENTSLiquidation Event" and collectively, "Liquidation Events") hereunder:
(a) Any Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Servicer) or the Seller (in the case of clause (ii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer the Servicers hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this Section 10.1) and such failure shall remain unremedied for ten (10) days (or in the case of the failure to deliver the Information Package one (1) Business Day Day) after the earlier of (A) written notice thereof shall have been given by the Administrative Agent to the Servicers or (b) a Responsible Officer of any Servicer shall have actual knowledge thereof or should have had knowledge thereof if such Responsible Officer had exercised reasonable care in the performance of his or her duties, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than made; provided that the materiality threshold in the preceding clause shall not be applicable with respect to any clause of any representation or warranty which itself contains a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)materiality qualification; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days ten (10) days (or, in the case of the Seller with respect failure to obligations under SECTION 13.01 and 14.05deliver the Information Package, ten one (101) daysBusiness Day) after the earlier of (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank Administrative Agent to any Seller Party or (Bb) a Responsible Officer of such Seller Party shall have actual knowledge thereof or KBK has actual knowledgeshould have had knowledge thereof if such Responsible Officer had exercised reasonable care in the performance of his or her duties; or
(i) A default Any Seller Party shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of in the case of the Seller, $500,000 of10,750, or guaranteed byin the case of any other Seller Party, $10,000,000 when and as the same shall become due and payable (after expiration of any Seller Party which default applicable grace or cure period) or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period or cure) contained in any agreement or instrument evidencing or governing any such Indebtedness if unremedied, uncuredthe effect of any failure referred to in this clause (B) is to cause, or unwaived permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the passage of time or the giving of notice or bothnotice) would permit acceleration of the maturity of to cause, such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough Indebtedness to permit such acceleration and any notice of default required become due prior to permit acceleration shall have been givenits stated maturity; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables in an aggregate amount in excess of in the case of the Seller, $10,750, or in the case of any other Seller PartyParty $10,000,000, 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 (A) is to terminate, or permit the termination of, of the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesreceivables or (B) is to terminate such commitment or right; or (iii) a default, amortization event, liquidation event or other similar event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK the Servicers or Sellerany Seller Party; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or The rolling three month average Dilution Ratio at any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectCut-Off Date exceeds 3.60%; or
(g) the The rolling three month average Default Ratio at any Cut-Off Date exceeds XXX2.30%; or
(h) the The rolling three month average Delinquency Ratio at any Cut-Off Date exceeds XXX4.50%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the Purchaser's Total Investment Invested Amount exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(lj) There shall have occurred any event which materially adversely impairs the ability of Seller Georgia Gulf or the Originator GGCV to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(mk) KBK or Any Seller Party is subject to a Change in ControlControl (unless approved in writing by Purchaser); or
(nl) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer Related Assets; or
(m) Georgia Gulf or GGCV shall make any material change in the policies as to origination of Receivables or in the Credit and such lien shall Collection Policy without the prior written consent of the Administrative Agent; or
(n) The Purchaser, for any reason, does not have been released within five daysa valid, perfected first priority interest in the Pool Receivables and the Related Assets; or
(o) Failure to obtain a Liquidity Agreement in substitution A final judgment or judgments shall be rendered against Georgia Gulf, GGCV, the Seller or any combination thereof for the then existing Liquidity Agreement on or before 30 days prior payment of money with respect to which an aggregate amount in excess of $10,750 with respect to the expiration Seller and $10,000,000 with respect to Georgia Gulf and GGCV is not covered by insurance and the same shall remain undischarged for a period of the commitments of the Liquidity Banks thereunder30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of Georgia Gulf or GGCV or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawSeller to enforce any such judgment; or
(ip) A Downgrading Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of Georgia Gulf or GGCV to the Pension Benefit Guaranty Corporation ("PBGC") or to a Liquidity Bank Plan in an aggregate amount exceeding $10,000,000 and, within 30 days after the reporting of any such Reportable Event to the Administrative Agent, on the Purchaser's behalf, the Administrative Agent shall have occurred notified Georgia Gulf or GGCV in writing that (i) the Administrative Agent, on the Purchaser's behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank as a result thereof a Liquidation Event exists hereunder; or a trustee shall not have been replaced be appointed by a Qualifying Liquidity Bank pursuant United States District Court to a Liquidity Agreement in form and substance acceptable administer any such Plan or Plans; or the PBGC shall institute proceedings to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded terminate any Plan or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;Plans; or
(q) Purchaser shall become an "investment company" within the meaning The occurrence of the Investment Company Act of 1940, as amended;a Servicer Default.
(r) Seller An "Event of Default" shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; oroccur under the Credit Agreement.
(s) An Event The sum of Bankruptcy (i) cash that is not subject to any Lien or otherwise encumbered and (ii) undrawn funding availability under the Credit Agreement shall have occurred and remain continuing with respect to an Affiliate be less than $15,000,000.
(t) The Seller's Net Worth shall be less than the Required Capital Amount.
(u) The occurrence of KBK or the Sellera Pledge Default.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK Parent or any its Affiliate of KBK is Servicer) (i) shall fail to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belownext following) and such failure shall remain unremedied for one more than five Business Day Days or (ii) Seller or Servicer (if Parent or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK Seller, any Originator or Seller (or any of its officers) Parent under or in connection with this Agreement Agreement, any other Transaction Document, any Daily Report or any Information Package Servicer Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller Seller, any Originator or KBK (individually or as Servicer) Parent shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five fifteen (15) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator to Seller, such Originator or Parent, as the Relationship Bank or (B) Seller or KBK has actual knowledgecase may be; or
(id) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 5,000,000 of, or guaranteed by, Parent or any Seller Party Subsidiary thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such is a payment default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, or any other event, shall occur and shall continue after that continues beyond the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Asset Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage interest to the extent of the Asset Interest in each Pool Asset, free and clear of any other Lien or (ii) cease to create with respect to the items described in Section 9.1, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any other Lien; or
(f) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitationParent, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller any Originator or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case Subsidiary of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectParent; or
(g) The average of the Sales-Based Dilution Ratios for any three consecutive Cut-Off Dates exceeds 9%; or
(h) The Sales-Based Default Ratio at for any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX5%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest ; or
(j) The Delinquency Ratio for any Cut-Off Date is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitgreater than 10%; or
(k) There shall exist any event or occurrence that would reasonably be expected to have has caused, or has a reasonable possibility of causing, a Material Adverse EffectEffect (other than a Material Adverse Effect described in clause (i) of the definition thereof); or
(l) There shall have occurred Seller, any event which materially adversely impairs the ability of Seller Originator or the Originator Parent is subject to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial PurchaseChange-in-Control; or
(m) KBK or Seller is subject to a Change in Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five days5 Business Days; or
(n) Parent sells, assigns (by operation of law or otherwise) or otherwise disposes of any of its assets, or any interest therein, other than (i) sales of inventory in the ordinary course of business, (ii) sales of surplus, damaged, worn or obsolete assets, or assets that are promptly being replaced, (iii) sales of assets on commercially reasonable terms, (iv) sales of receivables in connection with a securitization transaction, (v) sales to Subsidiaries, and (vi) sales of other assets, provided that the aggregate fair market value of such assets sold in any period of four consecutive fiscal quarters does not exceed the greater of (1) 25% of the Parent's Tangible Net Worth as of the last day of such fourth fiscal quarter and (2) $75,000,000; or
(o) Failure to obtain a Liquidity Agreement Parent makes any Investments other than (i) Permitted Investments, (ii) Investments existing on the date hereof, (iii) Investments in substitution for Subsidiaries, (iv) Investments in the then existing Liquidity Agreement on or before 30 days prior to nature of acquisitions, provided that the expiration aggregate amount of such acquisitions in any period of four consecutive fiscal quarters does not exceed 25% of Parent's Tangible Net Worth as of the commitments last day of such fourth fiscal quarter, (v) Investments in businesses related to data and information storage, and (vi) Investments not otherwise permitted by this subparagraph (o), provided that the aggregate amount of such Investments does not exceed the greater of (i) 25% of Parent's Tangible Net Worth as of the Liquidity Banks thereunder, or the early termination last day of the Liquidity Agreement as a result of default by Purchaser or a change in lawmost recently ended fiscal quarter and (ii) $50,000,000; or
(p) Parent permits:
(i) A Downgrading Event with respect its Tangible Net Worth to a Liquidity Bank shall have occurred and been continuing for not be less than 45 daysan amount equal to (1) 75% of Tangible Net Worth as of September 30, 2001, plus (2) 50% of consolidated Net Income (not to be reduced by losses) from September 30, 2001 to the end of the most recently ended fiscal quarter, minus (3) the amount paid by it for the repurchase of certain shares of its stock in connection with the Hynix Secondary Offering filed on a Form S-3 Registration Statement with the Securities and Exchange Commission on May 29, 2001, but not to exceed $50,000,000, minus (4) merger related charges taken after September 30, 2001, but not to exceed $120,000,000; and
(ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant aggregate amount of its unrestricted cash and cash equivalents and marketable securities on hand to a Liquidity Agreement in form and substance acceptable to Purchaser and be less than the Administrator, greater of (1) the product of (A) 1.50 and (iiiB) the commitment outstanding Capital as of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
Cut-Off Date and (q2) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller$150,000,000.
Appears in 1 contract
Liquidation Events. The following events shall be ------------------ "LIQUIDATION EVENTSLiquidation Events" hereunder:: ------------------
(ai) Servicer (if KBK Seller or any its Affiliate of KBK is Servicer) shall fail to deliver to Administrator an Information Package for any Settlement Period on or before 12:00, noon (iNew York City time) of the related Settlement Date or (ii) Servicer (if Seller or its Affiliate is Servicer) shall fail to perform or observe in any material respect any other term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIiii) belownext following) ------------ and such failure shall remain unremedied for one five Business Day Days after (1) written notice thereof shall have been given by the Administrator to Seller or (ii2) Seller has actual knowledge thereof or (iii) Servicer (if Seller or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied for ten (10) days)more than three Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK a Transferor or the Servicer, if Seller or its Affiliate is Servicer, (or any of its their officers) under a Transaction Document or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and shall continue to be incorrect for a period of thirty-five days (other than a or, with respect to Section 6.01(l), fifteen Business Days) after ---------------
(i) written notice thereof shall have been given by the Administrator to the Seller or the Servicer (if Seller or its Affiliate is Servicer) or (ii) Seller or the Servicer (if Seller or its Affiliate is Servicer) has actual knowledge thereof; provided, that with respect to the breach -------- of the representations or warranties set forth in SECTION 6.02(DSection 6.01(l) or --------------- (J) for which p), compliance by Seller with the Originator has satisfied its payment obligation under SECTION 3.5 provisions of the Sale Agreement)Section 3.02 in --- ------------ respect thereof shall be deemed to cure such breach; or
(c) Seller or KBK (individually or as Servicer) A Transferor shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents to which it is a party on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) thirty days after (Ai) written notice thereof shall have been given by the Administrator to Seller or KBK by the Administrator or the Relationship Bank or (Bii) Seller or KBK has actual knowledgeknowledge thereof; or
(i) A default shall have occurred and be continuing under any instrument Credit Facility of Charming Shoppes or agreement evidencing, securing any of its Affiliates with respect to a payment of principal of or providing for the issuance of indebtedness for borrowed money premium or interest in excess of $500,000 of1,000,000 (or $5,000,000, or guaranteed byin the case of Charming Shoppes), any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration acceleration, and (x) any notice of default required to permit acceleration shall have been givengiven and ten days shall have passed without such default having been cured or waived or (y) an acceleration shall have occurred; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, or any other event, Transferor shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, of the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables (provided that such default is not related to failure of the obligors on such purchased receivables to pay due to credit problems of such obligors or other portfolio tests with respect to such receivables), and (x) any notice of such event required to permit such termination shall have been delivered and ten days shall have passed without such default having been cured or waived or (y) termination shall have occurred; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK a Transferor, Servicer, Charming Shoppes or SellerCSRC; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK a Transferor, Servicer, Charming Shoppes or Seller or any Affiliate thereofCSRC, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE clause (Ii) or (IIii), in the reasonable opinion of ---------- ---- the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) The funds on deposit in the Default Ratio at RPA Cash Collateral Account shall be less than the RPA Required Cash Collateral Amount, and such condition shall continue for ten days; or any Cut-Off Date exceeds XXX; oramount required to be deposited in the Spread Account under the terms of the Spread Account Agreement shall not have been so deposited and such condition shall continue for ten days;
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the --------------- Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) The Master Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is the Master Servicer) or the Seller (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of the Master Servicer or the Seller hereunder (other than as referred to in CLAUSE clause (IIii) belowor (iii) below or in other paragraphs of this Section 10.1) and such failure shall remain unremedied for one Business Day thirty (30) days after written notice thereof shall have been given by the Administrative Agent to the Master Servicer or a Responsible Officer of the Master Servicer shall have otherwise become aware of such failure, or (ii) shall fail to make any payment or deposit to be made by it pursuant to Section 3.1(b) when due which failure shall continue for three (3) Business Days after the due date therefor, or (iii) shall fail to make any other payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten three (103) days)Business Days after the due date therefor; or
(b) Any representation or warranty made or deemed to be made by KBK any Seller Party or Seller any Originator (or any of its officers) under or in connection with this Agreement or any Information Package other Transaction Document or any Settlement Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made if such representation or warranty is susceptible of a cure, but such representation or warranty is not so cured by the earlier of (other than a breach i) thirty (30) days from the date that the party making such representation or warranty becomes aware of its incorrectness, or (ii) thirty (30) days from the date such party is given notice thereof; provided, however, that such cure period shall not be available for the representations set forth and warranties made in SECTION 6.02(DSections 6.1(d), 6.1(l), 6.1(p), 6.1(v) and 6.1(w) hereof, and the representations and warranties made in Sections 5.1(d), 5.1(k) or (J5.1(r) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); and provided, further, however, that a Liquidation Event shall not be deemed to have occurred under this Section 10.1(b) if the incorrectness of such representation or warranty gives rise to an obligation by the Seller to repurchase or make an adjustment payment in respect of the related Receivables and the Seller has repurchased or made such adjustment payment in respect of the related Receivable or all such Receivables, if applicable, in accordance with the provisions of this Agreement; or
(c) Any Seller Party or KBK (individually or as Servicer) any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days thirty (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (1030) days) days after (A) written notice thereof shall have been given to Seller or KBK by the Administrator Administrative Agent to such Seller Party or the Relationship Bank Originator or (B) such Seller Party or KBK has actual knowledgeOriginator shall have otherwise become aware; or
(i) A default Either Seller Party shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of $500,000 of10,000 with respect to the Seller and $10,000,000 with respect to MascoTech, or guaranteed by, when and as the same shall become due and payable (after expiration of any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or bothapplicable grace period) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period) contained in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (B) is to cause such Indebtedness to become due prior to its stated maturity; (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument of the Seller or the Master Servicer relating to the purchase of receivables in an aggregate amount in excess of any Seller Partyin the case of the Seller, $10,000,000, or in the case of the Master Servicer $10,000,000, 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 is to terminate, or permit the termination of, terminate the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; (iii) a default or trigger event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000; provided that for purposes of this subsection (d), a failure by MascoTech to observe or perform any term, covenant, or agreement in respect of the industrial revenue bonds identified on Schedule 2 of the Credit Agreement as in effect on the date hereof, or to pay on the due date therefor the debt outstanding thereunder, shall not be deemed a Liquidation Event or contribute to the $10,000,000 aggregate limitation set forth above, so long as MascoTech satisfies all obligations to pay premium, if any, principal of, and interest when due on such bonds (whether or not related to an acceleration of maturity) within five days after the due date therefor; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK any Seller Party or Sellerany Originator; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or The Seller to shall become an "investment company" within the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion meaning of the Administrator, has a reasonable likelihood Investment Company Act of having a Material Adverse Effect1940 and the rules and regulations thereunder; or
(g) the The three month rolling average Dilution Ratio at any Cut-Off Date exceeds 1.05%; or
(h) The three month rolling average Default Ratio at any Cut-Off Date exceeds XXX1.45%; or
(hi) the The three month rolling average Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank3.55%; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds would, but for the Allocation Limitlimitations set forth in Section 1.4(b), and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, exceed 100% or (ii) the Purchaser's Total Investment and the aggregate of the CP Discounts of all Commercial Paper Notes then outstanding exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator Originators to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(ml) KBK Any Seller Party, any Participating Division or Seller any Originator is subject to a Change in Control, except in the case of an Originator (or, in the case of MascoTech as an Originator, a Participating Division) subject to a Change in Control as to which a Mandatory Seller Termination Date or Permissive Seller Termination Date has occurred; or
(nm) 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 Receivables or Related Assets or against the Seller or Servicer and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Related Assets or against the Seller; or
(n) Any Originator or the Master Servicer shall make any material change in the policies as to origination of Receivables or in the Credit and such lien shall Collection Policy that is not have been released within five dayspermitted by Section 6.3 of the Sale Agreement or Section 7.3(c) of this Agreement without prior written notice to and consent of the Administrative Agent; or
(o) Failure to obtain The Purchaser, for any reason, does not have a Liquidity Agreement valid, perfected first priority security interest in substitution for the then existing Liquidity Agreement on or before 30 days prior to Pool Receivables and the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawRelated Assets; or
(ip) A Downgrading Event final judgment or judgments shall be rendered against the Master Servicer, the Seller or any combination thereof for the payment of money with respect to which an aggregate amount in excess of $10,000 with respect to the Seller and $5,000,000 with respect to the Master Servicer is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded levy upon assets or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal properties of the credit rating applied Master Servicer or the Seller to the Commercial Paper Notes by enforce any of the rating agencies then rating the Commercial Paper Notes;such judgment; or
(q) Purchaser shall become an "investment company" A Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Investment Company Act Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of 1940the Master Servicer or any ERISA Affiliate to the Pension Benefit Guaranty Corporation ("PBGC") or to a Plan in an aggregate amount exceeding $5,000,000 and, within 30 days after the reporting of any such Reportable Event to the Administrative Agent, on the Purchaser's behalf, the Administrative Agent shall have notified the Master Servicer or any ERISA Affiliate in writing that (i) the Administrative Agent, on the Purchaser's behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as amended;a result thereof a Liquidation Event exists hereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan or Plans; or the PBGC shall institute proceedings to terminate any Plan or Plans; or
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor The occurrence of Purchasera Servicer Default; or
(s) An Noncompliance with subsection (ii) of Section 7.1(i), which shall constitute a Liquidation Event without any requirement of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK notice or the Sellercure period.
Appears in 1 contract
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:: 39 44
(a) The Master Servicer (if KBK any Seller Party or any Affiliate thereof is the Master Servicer) or the Seller (in the case of KBK is Servicerclause (ii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of the Master Servicer hereunder (other than as referred to in CLAUSE clause (IIii) below) below or in other paragraphs of this Section 10.1), and such failure shall remain unremedied for one Business Day thirty (30) days after written notice thereof shall have been given by the Administrative Agent to the Master Servicer or the Master Servicer shall have otherwise become aware, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten three (103) days)Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK any Seller Party or Seller Lennox International (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than provided, however, that in the case of any representation, warranty or information that was not made or provided in writing, a breach of Liquidation Event shall occur hereunder only if such representation, warranty or information was reasonably relied upon by the representations set forth in SECTION 6.02(D) or (J) for which Administrative Agent and/or the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)Purchaser; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days thirty (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (1030) days) days after (A) written notice thereof shall have been given to Seller or KBK by the Administrator Administrative Agent to any Seller Party or the Relationship Bank or (B) such Seller or KBK has actual knowledgeParty shall have otherwise become aware; or
(i) A default Any Seller Party or Lennox International shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of in the case of the Seller, $500,000 of10,000, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without in the passage case of time Lennox International or the giving Master Servicer $7,500,000 when and as the same shall become due and payable (after expiration of notice or bothany applicable grace period) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period) contained in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (B) is to cause such Indebtedness to become due prior to its stated maturity; (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument of the Seller, Master Servicer or Lennox International relating to the purchase of receivables in an aggregate amount in excess of any Seller Partyin the case of the Seller, $10,000, or in the case of the Master Servicer or Lennox International $50,000,000, 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 is to terminate, or permit the termination of, terminate the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or (iii) a default or trigger event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000, if the effect of such default or trigger event is to cause the amounts owing in connection therewith to become payable prior to the stated maturity; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Lennox International or Sellerany Seller Party; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or The Seller to shall become an "investment company" within the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion meaning of the Administrator, has a reasonable likelihood Investment Company Act of having a Material Adverse Effect1940; or
(g) the The rolling 3 month average Dilution Ratio at any Cut-Off Date exceeds 12.00%; or
(h) The rolling 3 month average Default Ratio at any Cut-Off Date exceeds XXX2.65%; or
(hi) the The rolling 3 month average Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank3.95%; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the Purchaser's Total Investment and aggregate CP Discount exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator Originators to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(ml) KBK Any Seller Party, Originator or Seller Lennox International is subject to a Change in Control; or
(nm) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of the Receivables or Related Assets; or
(n) Any Seller Party or Servicer any Originator shall make any material change in the policies as to origination of Receivables or in its Credit and such lien shall not have been released within five daysCollection Policy without prior written notice to and consent of the Administrative Agent; or
(o) Failure to obtain The Purchaser, for any reason, does not have a Liquidity Agreement valid, perfected first priority interest in substitution for the then existing Liquidity Agreement on or before 30 days prior to Pool Receivables and the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawRelated Assets; or
(ip) A Downgrading Event final judgment or judgments shall be rendered against Lennox International, the Master Servicer, the Seller or any combination thereof for the payment of money with respect to which an aggregate amount in excess of $10,000 with respect to the Seller and $7,500,000 with respect to Lennox International or the Master Servicer is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable levy upon assets or properties of Lennox International, the Master Servicer or the Seller to Purchaser and the Administrator, and (iii) the commitment of enforce any such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;judgment; or
(q) Purchaser shall become an "investment company" A Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Investment Company Act Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of 1940any Master Servicer or any ERISA Affiliate to the Pension Benefit Guaranty Corporation ("PBGC") or to a Plan in an aggregate amount exceeding $5,000,000 and, within 30 days after the reporting of any such Reportable Event to the Administrative Agent, on the Purchaser's behalf, the Administrative Agent shall have notified the Master Servicer in writing that (i) the Administrative Agent, on the Purchaser's behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as amendeda result thereof a Liquidation Event exists hereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan or Plans; or the PBGC shall institute proceedings to terminate any Plan or Plans;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor The occurrence of Purchasera Servicer Default; or
(s) An Event of Bankruptcy The Seller's Net Worth shall have occurred and remain continuing with respect to an Affiliate of KBK or be less than the SellerThreshold Amount.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" hereunder:
(a) Servicer (if KBK or any Affiliate of KBK is Servicer) The Seller (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE (II) below) the Seller hereunder, and such failure shall remain unremedied for one Business Day thirty (30) days after the earliest to occur of (A) written notice thereof shall have been given by the Agent to the Seller or (B) a Senior Officer of the Seller shall otherwise become aware of such failure, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten two (102) days)Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK or the Seller (or any of its officers) under or in connection with this Agreement or any Information Package other Transaction Document or other information or report delivered pursuant hereto and thereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) The Seller or KBK shall (individually or as Servicer1) shall fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness when the aggregate unpaid principal amount is in excess of $10,000, when and as the same shall become due and payable (after expiration of any applicable grace period) or (2) fail to observe or perform or observe any other term, covenant covenant, condition or agreement (after expiration of any applicable grace period) contained in this Agreement any agreement or instrument evidencing or governing any such Indebtedness the effect of which default or other event or condition is to permit the other Transaction Documents holder or holders of such Indebtedness or a trustee on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived their behalf (with or without the passage giving of notice, the lapse of time or the giving of notice or both) would permit acceleration of the maturity of to cause, such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough Indebtedness to permit such acceleration and any notice of default required become due prior to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesstated maturity; or
(ed) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or the Seller; or
(ie) Any litigation (including, without limitation, derivative actions), arbitration proceedings The Purchaser or governmental proceedings not disclosed in writing by KBK or Seller to its successor shall become an "investment company" within the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion meaning of the AdministratorInvestment Company Act of 1940; or
(f) At any Cut-Off Date, has a reasonable likelihood the average of having a Material Adverse Effectthe Dilution Ratio for the immediately preceding three months exceeds 3.10%; or
(g) the The Default Trigger Ratio at any Cut-Off Date exceeds XXX19.5%; or
(h) the Delinquency Ratio at At any Cut-Off Date Date, the average of the Delinquency Ratio for the immediately preceding three months exceeds XXX4.00%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the Purchaser's Total Investment Invested Amount exceeds the Purchase LimitLimit and such situation remains unremedied for two (2) Business Days; or
(j) [Reserved]; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of The Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller Cadmus is subject to a Change in ControlControl which has not received the prior written consent of the Agent; or
(nl) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall shall, or indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer Related Assets; or
(m) Any Originator shall make any change in the policies as to the origination of the Receivables which materially adversely affects the credit quality of the Receivables in the Receivables Pool without the prior written consent of the Agent; or
(n) The Purchaser, for any reason, ceases to maintain a valid, perfected first priority interest in the Pool Receivables and such lien shall not have been released within five daysthe Related Assets; or
(o) Failure to obtain a Liquidity Agreement in substitution A final judgment or judgments shall be rendered against the Seller for the then existing Liquidity Agreement on or before 30 days prior to the expiration payment of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event money with respect to which an aggregate amount in excess of $10,000 is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded levy upon assets or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal properties of the credit rating applied Seller to the Commercial Paper Notes by enforce any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellersuch judgment.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Liquidation Events. The occurrence of any one or more of the following events shall be "LIQUIDATION EVENTS" hereunderconstitute a Liquidation Event:
(a) Servicer (if KBK or any Affiliate Any of KBK is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE (II) below) and such failure shall remain unremedied for one Business Day or (ii) the Seller Parties shall fail to make any payment or deposit required to be made by it hereunder under the Transaction Documents when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied continues for ten two (102) days); orconsecutive Business Days.
(b) Any representation representation, warranty, certification or warranty made or deemed to be statement made by KBK or Seller (or any of its officers) under the Seller Parties in any Transaction Document to which it is a party or in connection with this Agreement or any Information Package or other information or report document delivered pursuant hereto thereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); ordeemed made.
(c) [Reserved].
(d) Any of the Seller or KBK (individually or as Servicer) Parties shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or under any of the other Transaction Documents on its part to be performed or observed (except as described in clause (a) of this Section 9.1) and any such failure shall remain unremedied continue for five Business Days fifteen (or, in 15) days after the case earlier of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Administrative Agent to such Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" such Seller Party shall have occurred and be continuing under otherwise become aware of such failure.
(e) Failure of the Sale Agreement; Seller to pay any Indebtedness (other than the Aggregate Unpaids) when due or (iii) any the default under any other agreement or instrument relating to by the purchase of receivables Seller in the performance of any Seller Partyterm, provision or condition contained in any other eventagreement under which any such Indebtedness was created or is governed, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default which is to terminatecause, or to permit the termination ofholder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of the commitment Seller shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; ormaturity thereof.
(ef) Failure of T&B Corp. or any of its Subsidiaries other than the Seller to pay any Material Indebtedness when due; or T&B Corp. at any time has either (x) less than $50,000,000 in cash or (y) less than $50,000,000 under available committed lines of credit; or any Material Indebtedness of T&B Corp. or any of its Subsidiaries other than the Seller shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(g) An Event of Bankruptcy shall have occurred and remain continuing occur with respect to KBK any Seller Party or Seller; orany of its Subsidiaries.
(h) As at the end of any Collection Period:
(i) Any litigation the Delinquency Ratio shall exceed 2.5%,
(includingii) the Default Ratio shall exceed 2.2%, without limitation, derivative actions), arbitration proceedings or
(iii) the Dilution Ratio shall exceed 18.0%.
(i) A Change of Control shall occur.
(j) (i) One or governmental proceedings not disclosed more final judgments for the payment of money in writing by KBK an aggregate amount of $10,750 or more shall be entered against the Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) one or more final judgments for the payment of money in an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the Master Servicer or any material development Originator or any of their respective Subsidiaries (other than the Seller) on claims not so disclosed covered by insurance or as to which the insurance carrier has occurred denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Master Servicer, any Originator, or the Seller to enforce any such judgment.
(k) The "Termination Date" under and as defined in the Receivables Contribution Agreement and the Receivables Transfer Agreement shall occur under the Receivables Contribution Agreement or the Receivables Transfer Agreement, respectively, or any Originator shall for any reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to T&B Corp. under the Receivables Transfer Agreement or to the Seller under the Receivables Contribution Agreement.
(l) This Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of the Seller, or any Obligor shall directly or indirectly contest in any litigation (includingmanner such effectiveness, without limitationvalidity, derivative actions)binding nature or enforceability, arbitration proceedings or governmental proceedings so disclosed, which, the Administrative Agent for the benefit of the Secured Parties shall cease to have a valid and perfected first priority security interest in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; orPurchased Assets.
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(jm) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C)turnover of Collections by the Master Servicer on such date and the application thereof to the Aggregate Unpaids in accordance with this Agreement, either (i) the Asset Interest exceeds Aggregate Invested Amount shall exceed the Allocation Limit, and the Asset Interest is not reduced below the Allocation Purchase Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality aggregate of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; orInterests shall exceed 100%.
(n) Any Originator or the Master Servicer shall make any material change in the policies as to origination of Receivables or in the Credit and Collection Policy, without the prior written consent of the Administrative Agent.
(o) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Tax Code with regard to any assets of Seller or Servicer the Purchased Assets and such lien shall not have been released within five daysthe earlier to occur of (i) seven (7) days or, (ii) the day on which the Administrative Agent or Blue Ridge becomes aware of such filing, or the Pension Benefit Guaranty Corporation PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 ERISA with regard to any assets of Seller the Purchased Assets.
(p) Except such matters as described on EXHIBIT XI delivered on the Closing Date, any Plan of T&B Corp. or Servicer and any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by applicable law, the terms of such lien shall not have been released within five daysPlan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under applicable law, the terms of such Plan or Section 412 of the Tax Code or Section 303 of ERISA; or
(oii) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunderis being, or has been, terminated or the early subject of termination proceedings under applicable law or the terms of the Liquidity Agreement as a result of default by Purchaser or a change in lawsuch Plan; or
(iiii) A Downgrading Event shall require T&B Corp. or any of its ERISA Affiliates to provide security under applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to T&B Corp. or any of its ERISA Affiliates under applicable law, the terms of such Plan, or Title IV ERISA; and such failure, waiver, termination or other event results in a liability to the PBGC or with respect to such Plan that could reasonably be expected to have a Liquidity Bank Material Adverse Effect.
(q) Any event shall occur which (i) materially and adversely impairs the ability of the Originators to originate Receivables of a credit quality that is at least equal to the credit quality of the Receivables sold or contributed to the Seller on the date of this Agreement or (ii) has, or could be reasonably expected to have occurred and been continuing for not a Material Adverse Effect.
(r) The Net Pool Balance shall at any time be less than 45 days, an amount equal to the sum of (i) the Aggregate Invested Amount plus (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the SellerRequired Reserve.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Thomas & Betts Corp)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" hereunder:
(a) The Master Servicer (if KBK any Seller Party or any Affiliate thereof is the Master Servicer) or the Seller (in the case of KBK is ServicerCLAUSE (ii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of the Master Servicer hereunder (other than as referred to in CLAUSE (IIii) below) below or in other paragraphs of this SECTION 10.1), and such failure shall remain unremedied for one Business Day thirty (30) days after written notice thereof shall have been given by the Administrative Agent to the Master Servicer or the Master Servicer shall have otherwise become aware, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten three (103) days)Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK any Seller Party or Seller Lennox International (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than PROVIDED, HOWEVER, that in the case of any representation, warranty or information that was not made or provided in writing, a breach of Liquidation Event shall occur hereunder only if such representation, warranty or information was reasonably relied upon by the representations set forth in SECTION 6.02(D) or (J) for which Administrative Agent and/or the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)Purchaser; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days thirty (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (1030) days) days after (A) written notice thereof shall have been given to Seller or KBK by the Administrator Administrative Agent to any Seller Party or the Relationship Bank or (B) such Seller or KBK has actual knowledgeParty shall have otherwise become aware; or
(i) A default Any Seller Party or Lennox International shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of in the case of the Seller, $500,000 of10,000, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without in the passage case of time Lennox International or the giving Master Servicer $7,500,000 when and as the same shall become due and payable (after expiration of notice or bothany applicable grace period) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period) contained in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this CLAUSE (B) is to cause such Indebtedness to become due prior to its stated maturity; (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument of the Seller, Master Servicer or Lennox International relating to the purchase of receivables in an aggregate amount in excess of any Seller Partyin the case of the Seller, $10,000, or in the case of the Master Servicer or Lennox International $50,000,000, 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 is to terminate, or permit the termination of, terminate the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or (iii) a default or trigger event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000, if the effect of such default or trigger event is to cause the amounts owing in connection therewith to become payable prior to the stated maturity; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Lennox International or Sellerany Seller Party; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or The Seller to shall become an "investment company" within the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion meaning of the Administrator, has a reasonable likelihood Investment Company Act of having a Material Adverse Effect1940; or
(g) the The rolling 3 month average Dilution Ratio at any Cut-Off Date exceeds 12.00%; or
(h) The rolling 3 month average Default Ratio at any Cut-Off Date exceeds XXX2.65%; or
(hi) the The rolling 3 month average Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank3.95%; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the Purchaser's Total Investment Invested Amount exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator Originators to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(ml) KBK Any Seller Party, Originator or Seller Lennox International is subject to a Change in Control; or
(nm) The Internal Revenue Service shall file notice of a lien pursuant to Section SECTION 6323 of the Internal Revenue Code with regard to any assets of Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section SECTION 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of the Receivables or Related Assets; or
(n) Any Seller Party or Servicer any Originator shall make any material change in the policies as to origination of Receivables or in its Credit and such lien shall not have been released within five daysCollection Policy without prior written notice to and consent of the Administrative Agent; or
(o) Failure to obtain The Purchaser, for any reason, does not have a Liquidity Agreement valid, perfected first priority interest in substitution for the then existing Liquidity Agreement on or before 30 days prior to Pool Receivables and the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawRelated Assets; or
(ip) A Downgrading Event final judgment or judgments shall be rendered against Lennox International, the Master Servicer, the Seller or any combination thereof for the payment of money with respect to which an aggregate amount in excess of $10,000 with respect to the Seller and $7,500,000 with respect to Lennox International or the Master Servicer is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable levy upon assets or properties of Lennox International, the Master Servicer or the Seller to Purchaser and the Administrator, and (iii) the commitment of enforce any such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;judgment; or
(q) Purchaser shall become an "investment company" A Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of SECTION 412(n)(1) of the Investment Company Act Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of 1940any Master Servicer or any ERISA Affiliate to the Pension Benefit Guaranty Corporation ("PBGC") or to a Plan in an aggregate amount exceeding $5,000,000 and, within 30 days after the reporting of any such Reportable Event to the Administrative Agent, on the Purchaser's behalf, the Administrative Agent shall have notified the Master Servicer in writing that (i) the Administrative Agent, on the Purchaser's behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as amendeda result thereof a Liquidation Event exists hereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan or Plans; or the PBGC shall institute proceedings to terminate any Plan or Plans;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor The occurrence of Purchasera Servicer Default; or
(s) An Event of Bankruptcy The Seller's Net Worth shall have occurred and remain continuing with respect to an Affiliate of KBK or be less than the SellerThreshold Amount.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" hereunder:
(a) Servicer (if KBK or any Affiliate of KBK is Servicer) The Seller (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE (II) below) the Seller hereunder, and such failure shall remain unremedied for one Business Day thirty (30) days after the earliest to occur of (A) written notice thereof shall have been given by the Agent to the Seller or (B) a Senior Officer of the Seller shall otherwise become aware of such failure, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten two (102) days)Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK or the Seller (or any of its officers) under or in connection with this Agreement or any Information Package other Transaction Document or other information or report delivered pursuant hereto and thereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) The Seller or KBK shall (individually or as Servicer1) shall fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness when the aggregate unpaid principal amount is in excess of $10,000, when and as the same shall become due and payable (after expiration of any applicable grace period) or (2) fail to observe or perform or observe any other term, covenant covenant, condition or agreement (after expiration of any applicable grace period) contained in this Agreement any agreement or instrument evidencing or governing any such Indebtedness the effect of which default or other event or condition is to permit the other Transaction Documents holder or holders of such Indebtedness or a trustee on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived their behalf (with or without the passage giving of notice, the lapse of time or the giving of notice or both) would permit acceleration of the maturity of to cause, such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough Indebtedness to permit such acceleration and any notice of default required become due prior to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesstated maturity; or
(ed) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or the Seller; or
(ie) Any litigation (including, without limitation, derivative actions), arbitration proceedings The Purchaser or governmental proceedings not disclosed in writing by KBK or Seller to its successor shall become an "investment company" within the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion meaning of the Administrator, has a reasonable likelihood Investment Company Act of having a Material Adverse Effect1940; or
(gf) the Default The Dilution Ratio at any Cut-Off Date exceeds XXX5.30%; or
(g) The Default Trigger Ratio at any Cut-Off Date exceeds 13.65%; or
(h) the The Delinquency Ratio at any Cut-Off Date exceeds XXX15.15%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the Purchaser's Total Investment sum of (A) the Invested Amount and (B) the Aggregate Accruals exceeds the Purchase LimitLimit and such situation remains unremedied for two (2) Business Days; or
(j) [Reserved]; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of The Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller Cadmus is subject to a Change in ControlControl which has not received the prior written consent of the Agent; or
(nl) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall shall, or indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer Related Assets; or
(m) Any Originator shall make any change in the policies as to the origination of the Receivables which materially adversely affects the credit quality of the Receivables in the Receivables Pool without the prior written consent of the Agent; or
(n) The Purchaser, for any reason, ceases to maintain a valid, perfected first priority interest in the Pool Receivables and such lien shall not have been released within five daysthe Related Assets; or
(o) Failure to obtain a Liquidity Agreement in substitution A final judgment or judgments shall be rendered against the Seller for the then existing Liquidity Agreement on or before 30 days prior to the expiration payment of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event money with respect to which an aggregate amount in excess of $10,000 is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded levy upon assets or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal properties of the credit rating applied Seller to the Commercial Paper Notes by enforce any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellersuch judgment.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer or Seller shall fail to make when due any payment or deposit of any Earned Return, Investment, Program Fee, Commitment Fee, Servicer's Fee (if Union is not Servicer) or other amount required to be paid by it hereunder or to be deposited by it hereunder in the Agent's Account, including the amount of any deemed Collection or
(ii) Servicer or Seller shall fail to make when due any other payment or deposit to be made by it hereunder; or
(b) Servicer (if KBK or any Affiliate of KBK is ServicerUnion) shall (i) fail to deliver any Periodic Report on the date when such Periodic Report is due or shall fail to deliver any other report that it is required to deliver hereunder and such failure shall continue to be unremedied for a period of five days after such Periodic Report was due, or (ii) fail to perform or observe in any material respect any term, covenant or agreement that is an obligation of Servicer hereunder on its part to be performed or observed (other than as referred to in CLAUSE clause (IIa) belowor (b)(i) above) and such failure shall remain unremedied for one Business Day or (ii) a period of 30 days after written notice thereof shall fail have been given to make any payment or deposit to be made the Servicer by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)Agent; or
(bc) Any representation or warranty made or deemed to be made by KBK Servicer, Union or Seller (or any of its officers) under or in connection with this Agreement or any Information Package Transaction Document (including any Periodic Report or other information or report delivered pursuant hereto hereto) shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)deemed made; or
(cd) Seller or KBK (individually or as Servicer) Union shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents Document on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) 30 days after (A) written notice thereof shall have been given to Seller or KBK by from the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgeAgent; or
(i) A default shall have occurred in the payment when due (after giving effect to any applicable grace period and be continuing under the giving of any instrument required notice), whether by acceleration or agreement evidencingotherwise, securing or providing of (A) any Indebtedness (other than any Obligation constituting Indebtedness) of, (B) any reimbursement obligation in respect of any letter of credit issued for the issuance account of, or (C) any payment obligation in respect of indebtedness for borrowed money any Guaranty issued by Union, which Indebtedness, reimbursement obligation or payment obligation is in a principal amount, individually at any time in excess of ten million dollars ($500,000 of10,000,000), or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" default shall have occurred and be continuing under occur in the Sale Agreement; performance or (iii) any default under any other agreement or instrument relating to the purchase of receivables observance of any Seller Partymaterial obligation or condition with respect to such Indebtedness, any such letter of credit or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, Guaranty if the effect of such default described in this clause (ii) is (A) to terminate, or permit accelerate the termination of, the commitment maturity of any party such Indebtedness or any obligation which is supported by any such Guaranty or (B) to such agreement require the advance payment or instrument to purchase receivables or the right cash collateralization of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesletter of credit reimbursement obligation; or
(ef) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Seller, Union or SellerFTL;
(g) Either (i) the Aggregate Undivided Interest Amount shall at any time exceed the sum of (x) the Net Pool Balance and (y) the Net Liquidation Account Balance, and such condition shall continue for five Business Days or (ii) the Aggregate Investment shall at any time exceed the Facility Limit, and such condition shall continue for five Business Days; or
(h) The arithmetic mean of the Delinquency Ratio for the prior three consecutive Fiscal Months shall exceed 8.0%; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date The arithmetic mean of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without for the prior written consent of the Administrator and the Relationship Bankthree consecutive Fiscal Months shall exceed 5.0%; or
(j) On any Settlement Date, after giving effect to The arithmetic mean of the payments made under SECTION 3.01(C), (i) Dilution Ratios for the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitprior three consecutive Fiscal Months shall exceed 10%; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(ni) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer and such lien shall not have been released within five days, Union or (ii) the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 ERISA with regard to any of the assets of Seller or Servicer Union, and in each case, such lien shall not have been released within five days15 Business Days; or
(ol) Failure Seller shall have failed to obtain a Liquidity Agreement in substitution comply with Section 7.03(f)(i), (ii) or (iii) and such failure shall remain unremedied for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawthree Business Days; or
(im) A Downgrading Event with respect to a Liquidity Bank The Purchase and Sale Termination Date shall have occurred and been continuing for not less than 45 days, (ii) at the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal option of the credit rating applied to the Commercial Paper Notes by any Company or all of the rating agencies then rating Originators, or the Commercial Paper Notes;
(q) Purchaser Facility shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaserhave terminated; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fruit of the Loom Inc /De/)
Liquidation Events. The occurrence and continuation of any of the following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK any Transaction Party or any Affiliate of KBK thereof is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this Section 10.01) and such failure shall remain unremedied for one five (5) Business Day Days or (ii) Servicer or Transferor shall fail to make any payment or deposit to be made by it hereunder when due in respect of Earned Discount or the Transferee's Total Investment or interest accruing at the Default Rate, or any Transaction Party shall fail to observe, perform or comply with Section 7.02 or (and, iii) Servicer or Transferor shall fail to make any payment or deposit to be made by it hereunder other than as described in the case of payments under SECTION 13.02foregoing clause, (ii) and such failure shall remain unremedied for ten three (103) days)Business Days; or
(bi) Any representation or warranty made or deemed to be made by KBK or Seller any Transaction Party (or any of its officers) under or in connection with this Agreement (other than any representation or warranty set forth in Sections 6.01 (k), (l) and (o)) or any Information Package other Transaction Document or other information or report delivered pursuant hereto or thereto shall prove to have been false or incorrect in any material respect when made; or (ii) any representation or warranty made or deemed to be made by any Transaction Party (or any of its officers) in Sections 6.01 (k), (l) and (o) shall prove to have been false or incorrect in any material respect when made and such inaccuracy remains unremedied for five (other than a breach of the representations set forth in SECTION 6.02(D5) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)Business Days; or
(c) Seller or KBK (individually or as Servicer) Any Transaction Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents (other than as described in Section 10.01(a)) on its part to be performed or observed and any such failure shall remain unremedied for five (5) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgeDays; or
(id) A default WestPoint or any other Originator shall have occurred and be continuing under (1) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of $500,000 of10,000,000, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without when and as the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness same shall become due and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; payable or (ii2) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; fail to observe or (iii) perform any default under term, covenant, condition or agreement contained in any other agreement or instrument relating to the purchase evidencing or governing any Indebtedness (including any guaranty of receivables of any Seller Party, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, Indebtedness) if the effect of such default any failure referred to in this clause (2) is to terminate, or permit the termination of, the commitment of any party cause such Indebtedness to such agreement or instrument become due prior to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesstated maturity; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" hereunder:
(a) Master Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Master Servicer) or Seller (in the case of CLAUSE (ii) below)
(i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Master Servicer hereunder (other than as referred to in CLAUSE (IIii) below) and including, without limitation, failure to deliver any Information Package, report, statement or other written information required to be delivered by Master 47 Servicer hereunder if, in the case of a failure to deliver any Information Package, such failure shall remain unremedied for one three (3) Business Day or Days and, in the case of any other failure, such failure shall remain unremedied for five (5) Business Days, or
(ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than and which continues to be incorrect in any material respect for a breach period of fifteen days after the representations set forth in SECTION 6.02(D) date on which notice of such inaccuracy, requiring the same to be remedied, shall have been given to any Seller Party by the Administrator, or (J) for which after the Originator date any Responsible Manager of a Seller Party has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)actual knowledge thereof; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and (except as provided in CLAUSE (o) below), any such failure shall remain unremedied for five fifteen (15) Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank to any Seller Party or (B) any Responsible Manager of a Seller or KBK Party has actual knowledgeknowledge thereof; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money which, when taken together with the amount of receivables subject to any agreement or instrument also in default under CLAUSE (iii) below, is in excess of $500,000 2,500,000, which indebtedness is of, or guaranteed by, any Seller Party or any Affiliate thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been givenacceleration; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller PartyParty or any Affiliate thereof in an aggregate amount which, when taken together with the amount of indebtedness subject to any agreement or instrument also in default under CLAUSE (i) above, is in excess of $2,500,000, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party or such Affiliate to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Master Servicer, any Seller Party or Sellerany Originator; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or the Seller shall be required to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereofregister as an "investment company", or (ii) any material development not so disclosed has occurred in any litigation (includingbe a company controlled by an "investment company", without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in within the case of CLAUSE (I) or (II), in the opinion meaning of the AdministratorInvestment Company Act of 1940, has a reasonable likelihood of having a Material Adverse Effectas amended; or
(g) The Dilution Ratio at any Cut-Off Date exceeds 5.0% as of such Cut-Off Date or the average of the Dilution Ratios for any three consecutive Cut-Off Dates exceeds 3.50%; or
(h) The Default Ratio at any Cut-Off Date exceeds XXX; or
(h) 2.0% or the Delinquency Ratio at average of the Default Ratios for any three consecutive Cut-Off Date Dates exceeds XXX1.75%; or
(i) Master Servicer (if any Seller Party or Affiliate thereof is Master Servicer) shall make any material change in the policies as to origination of Receivables or in the Credit and Collection Policy and more than five Business Days have elapsed without the Master Servicer having obtained the prior written consent of the Administrator and the Relationship Bank, which consent shall not be unreasonably withheld; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C3.01(c), (i) the Asset Purchased Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit and, if such excess in CLAUSE (i) or (ii) exists solely as a result of a decrease in the Excess Concentration Limit, the Purchased Interest or the Purchaser's Total Investment shall exceed the respective Allocation Limit or Purchase Limit for more than fifteen days after the Settlement Date for the Settlement Period during which such decrease occurred; or
(k) There shall exist The Delinquency Ratio at any event Cut-Off Date exceeds 8.0% or occurrence that would reasonably be expected to have a Material Adverse Effectthe average of the Delinquency Ratios for any three consecutive Cut-Off Dates exceeds 6.0%; or
(l) There A Concentration Draw shall have occurred any event which materially adversely impairs been requested by the ability of Seller or Purchaser and funded by a Concentration Bank pursuant to the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial PurchaseLiquidity Agreement; or
(m) KBK or Any Seller Party is subject to a Change in Change-in-Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section SECTION 6323 of the Internal Revenue Code with regard to any assets of Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five 5 days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section SECTION 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer and such lien shall not have been released within five daysRelated Assets; or
(o) Failure Standard shall (i) fail to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration observe any of the commitments financial covenants set forth in SECTION 7.05 or (ii) permit the Tangible Net Worth of the Liquidity Banks thereunder, or the early termination Seller (computed for purposes 49 of this CLAUSE (o) by including any Initial Purchaser Notes as Indebtedness of the Liquidity Agreement as Seller) to be less than $7,500,000 for a result period of default by Purchaser or a change in lawmore than 30 days; or
(ip) A Downgrading Event with respect to a Liquidity Bank One or more judgments in an aggregate amount exceeding $1,000,000 (not including any portion thereof for which an insurance company shall have occurred acknowledged responsibility in writing or which shall have been paid or bonded or stayed pending appeal) shall have been entered against any Seller Party and been continuing remain undischarged for not less than 45 days, a period of thirty (ii30) the Downgraded Liquidity Bank days during which execution shall not have been replaced by a Qualifying Liquidity be effectively stayed, which, in the opinion of the Relationship Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and or the Administrator, and (iii) the commitment have caused, or have a reasonable likelihood of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such causing, a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;Material Adverse Effect; or
(q) Purchaser This Agreement shall become an "investment company" within for any reason (other than pursuant to the meaning of the Investment Company Act of 1940, as amended;
(rterms hereof) Seller shall fail cease to grant or maintain valid and perfected ownership and security interests create in favor of Purchaser; or
(s) An Event the Purchaser a valid and enforceable first priority perfected ownership interest or security interest in each Purchased Interest hereunder, free and clear of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellerany lien.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Standard Products Co)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK Seller or any its Affiliate of KBK is Servicer) shall fail to deliver to Administrator an Information Package for any Settlement Period on or before 12:00, noon (iNew York City time) of the related Settlement Date or (ii) Servicer (if Seller or its Affiliate is Servicer) shall fail to perform or observe in any material respect any other term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIiii) belownext following) and such failure shall remain unremedied for one five Business Day Days after (1) written notice thereof shall have been given by the Administrator to Seller or (ii2) Seller has actual knowledge thereof or (iii) Servicer (if Seller or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied for ten (10) days)more than three Business Days; or
(b) Any representation or warranty made or deemed to be made by KBK a Transferor or the Servicer, if Seller or its Affiliate is Servicer, (or any of its their officers) under a Transaction Document or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and shall continue to be incorrect for a period of thirty-five days (other than a or, with respect to Section 6.01(l), fifteen Business Days) after (i) written notice thereof shall have been given by the Administrator to the Seller or the Servicer (if Seller or its Affiliate is Servicer) or (ii) Seller or the Servicer (if Seller or its Affiliate is Servicer) has actual knowledge thereof; provided, that with respect to the breach of the representations or warranties set forth in SECTION 6.02(DSection 6.01(l) or (J) for which p), compliance by Seller with the Originator has satisfied its payment obligation under SECTION 3.5 provisions of the Sale Agreement)Section 3.02 in respect thereof shall be deemed to cure such breach; or
(c) Seller or KBK (individually or as Servicer) A Transferor shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents to which it is a party on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) thirty days after (Ai) written notice thereof shall have been given by the Administrator to Seller or KBK by the Administrator or the Relationship Bank or (Bii) Seller or KBK has actual knowledgeknowledge thereof; or
(i) A default shall have occurred and be continuing under any instrument Credit Facility of Charming Shoppes or agreement evidencing, securing any of its Affiliates with respect to a payment of principal of or providing for the issuance of indebtedness for borrowed money premium or interest in excess of $500,000 of1,000,000 (or $5,000,000, or guaranteed byin the case of Charming Shoppes), any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration acceleration, and (x) any notice of default required to permit acceleration shall have been givengiven and ten days shall have passed without such default having been cured or waived or (y) an acceleration shall have occurred; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, or any other event, Transferor shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, of the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables (provided that such default is not related to failure of the obligors on such purchased receivables to pay due to credit problems of such obligors or other portfolio tests with respect to such receivables), and (x) any notice of such event required to permit such termination shall have been delivered and ten days shall have passed without such default having been cured or waived or (y) termination shall have occurred; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK a Transferor, Servicer, Charming Shoppes or SellerCSRC; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK a Transferor, Servicer, Charming Shoppes or Seller or any Affiliate thereofCSRC, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE clause (Ii) or (IIii), in the reasonable opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) The funds on deposit in the Default Ratio at RPA Cash Collateral Account shall be less than the RPA Required Cash Collateral Amount, and such condition shall continue for ten days; or any Cut-Off Date exceeds XXX; oramount required to be deposited in the Spread Account under the terms of the Spread Account Agreement shall not have been so deposited and such condition shall continue for ten days;
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" liquidation events, (each a “Liquidation Event” and collectively, “Liquidation Events”) hereunder:
(a) Any Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Servicer) or the Seller (in the case of clause (ii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer the Servicers hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this Section 10.1) and such failure shall remain unremedied for ten (10) days (or in the case of the failure to deliver the Information Package one (1) Business Day Day) after the earlier of (A) written notice thereof shall have been given by the Administrative Agent to the Servicers or (B) a Responsible Officer of any Servicer shall have actual knowledge thereof or should have had knowledge thereof if such Responsible Officer had exercised reasonable care in the performance of his or her duties, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Information Package, Interim Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than made; provided that the materiality threshold in the preceding clause shall not be applicable with respect to any clause of any representation or warranty which itself contains a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)materiality qualification; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days ten (10) days (or, in the case of the Seller with respect failure to obligations under SECTION 13.01 and 14.05deliver the Information Package, ten one (101) daysBusiness Day) after the earlier of (A) written notice thereof shall have been given by any Agent to any Seller or KBK by the Administrator or the Relationship Bank Party or (Bb) a Responsible Officer of such Seller Party shall have actual knowledge thereof or KBK has actual knowledgeshould have had knowledge thereof if such Responsible Officer had exercised reasonable care in the performance of his or her duties; or
(i) A default Any Seller Party shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of in the case of the Seller, $500,000 of10,750, or guaranteed byin the case of any other Seller Party, $10,000,000 when and as the same shall become due and payable (after expiration of any Seller Party which default applicable grace or cure period) or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period or cure) contained in any agreement or instrument evidencing or governing any such Indebtedness if unremedied, uncuredthe effect of any failure referred to in this clause (B) is to cause, or unwaived permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the passage of time or the giving of notice or bothnotice) would permit acceleration of the maturity of to cause, such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough Indebtedness to permit such acceleration and any notice of default required become due prior to permit acceleration shall have been givenits stated maturity; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables in an aggregate amount in excess of in the case of the Seller, $10,750, or in the case of any other Seller PartyParty $10,000,000, 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 (A) is to terminate, or permit the termination of, of the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesreceivables or (B) is to terminate such commitment or right; or (iii) a default, amortization event, liquidation event or other similar event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK the Servicers or Sellerany Seller Party; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or The rolling three month average Dilution Ratio at any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectCut-Off Date exceeds 3.75%; or
(g) the The rolling three month average Default Ratio at any Cut-Off Date exceeds XXX2.35%; or
(h) the The rolling three month average Delinquency Ratio at any Cut-Off Date exceeds XXX3.25%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.1(c), (i) the Asset Interest exceeds the Allocation Limit100%, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment Invested Amount exceeds the Purchase Limit, or (iii) any Purchaser Group Invested Amount exceeds the related Purchaser Group Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(lj) There shall have occurred any event which materially adversely impairs the ability of Seller Georgia Gulf or the Originator GGCV to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(mk) KBK or Any Seller Party is subject to a Change in ControlControl (unless approved in writing by each Purchaser); or
(nl) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer Related Assets; or
(m) Georgia Gulf or GGCV shall make any material change in the policies as to origination of Receivables or in the Credit and such lien shall Collection Policy without the prior written consent of the Agents; or
(n) The Administrative Agent, for the benefit of the Secured Parties, for any reason, does not have been released within five daysa valid, perfected first priority interest in the Pool Receivables and the Related Assets; or
(o) Failure to obtain a Liquidity Agreement in substitution A final judgment or judgments shall be rendered against Georgia Gulf, GGCV, the Seller or any combination thereof for the then existing Liquidity Agreement on or before 30 days prior payment of money with respect to which an aggregate amount in excess of $10,750 with respect to the expiration Seller and $10,000,000 with respect to Georgia Gulf and GGCV is not covered by insurance and the same shall remain undischarged for a period of the commitments of the Liquidity Banks thereunder30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of Georgia Gulf or GGCV or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawSeller to enforce any such judgment; or
(ip) A Downgrading Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of Georgia Gulf or GGCV to the Pension Benefit Guaranty Corporation (“PBGC”) or to a Liquidity Bank Plan in an aggregate amount exceeding $10,000,000 and, within 30 days after the reporting of any such Reportable Event to the Agents, on the Purchasers’ behalf, any Agent shall have occurred notified Georgia Gulf or GGCV in writing that (i) such Agent, on the related Purchaser’s behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank as a result thereof a Liquidation Event exists hereunder; or a trustee shall not have been replaced be appointed by a Qualifying Liquidity Bank pursuant United States District Court to a Liquidity Agreement in form and substance acceptable administer any such Plan or Plans; or the PBGC shall institute proceedings to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded terminate any Plan or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;Plans; or
(q) Purchaser shall become an "investment company" within the meaning The occurrence of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellera Servicer Default.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Liquidation Events. The following events shall be "LIQUIDATION EVENTS" “Liquidation Events” hereunder:
(a) Seller, Transferor, any Originator or Servicer (if KBK or any Affiliate of KBK is Servicer) (i) shall fail to perform or observe in any material respect any term, covenant or agreement that is an obligation of Seller, Transferor, any Originator or Servicer hereunder under the Transaction Documents (other than as referred to in CLAUSE clause (IIb) belownext following) and such failure shall remain unremedied for one Business Day fifteen days after (1) written notice thereof shall have been given by the Administrator to Seller, Transferor, any Originator or Servicer, as applicable, or (ii2) Seller, Transferor, any Originator or Servicer, as applicable, has actual knowledge thereof, and such failure shall have a Material Adverse Effect; or
(b) Seller, Transferor, any Originator or Servicer shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, and such failure shall remain unremedied for ten (10) days)more than one Business Day; or
(bc) Any representation or warranty made or deemed to be made by KBK the Seller, Transferor, any Originator or Seller (the Servicer under a Transaction Document or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); or
(c) Seller or KBK (individually or as Servicer) and shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part continue to be performed or observed and any such failure shall remain unremedied incorrect for five Business Days (or, in the case a period of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) fifteen days after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator to the Seller or the Relationship Bank Servicer (if Seller or its Affiliate is Servicer) or (Bii) Seller or KBK the Servicer (if Seller or its Affiliate is Servicer) has actual knowledgeknowledge thereof, and such incorrect statement shall have a Material Adverse Effect; provided, that with respect to the breach of the representations or warranties set forth in Section 6.01(j), compliance by Seller with the provisions of Section 3.02 in respect thereof shall be deemed to cure such breach; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(ed) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK the Seller, the Transferor, the Servicer or Sellerany Originator; or
(ie) Any litigation (includingOriginator, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser Transferor shall become an "“investment company" ” or a company controlled by an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(sf) An On any Settlement Date, the Average Excess Spread Percentage is less than 1.0%; or
(g) On any Settlement Date, the Average Monthly Principal Payment Rate Percentage is less than 6.0%; or
(h) On any Settlement Date, the Average Dilution Percentage is greater than 8.0%; or
(i) Any Originator, Seller, Transferor or Servicer (if Servicer is Seller or its Affiliate) is subject to a Change in Control; or
(j) Any Originator shall become unable for any reason to transfer Receivables to the Transferor pursuant to the First Tier Agreement; or the Transferor shall become unable for any reason to transfer Receivables to the Seller pursuant to the Second Tier Agreement; or
(k) On any Settlement Date (after giving effect to all allocations of funds on such date), the Senior Investor Balance shall exceed the Benchmark Amount by more than $100,000, and such condition shall be unremedied for more than five Business Days; or
(l) A Cap Replacement Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellerbe continuing.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(ai) Servicer (if KBK APR or any Affiliate of KBK is Servicer) (iAPR) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE clause (IIii) belownext following) and such failure shall remain unremedied for one three Business Day Days or (ii) Servicer (if APR or any Affiliate of APR) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK Seller, APR or Seller Parent (or any of its their officers) under or in connection with this Agreement or any Information Package other Transaction Document or any Settlement Statement or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller Seller, APR or KBK (individually or as Servicer) Parent shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its their part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (Ai) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank to Seller, APR or Parent, as applicable, or (Bii) either Seller or KBK APR has actual knowledgeknowledge thereof; or
(i) A default or a similar event, as the case may be, shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for (A) the issuance of indebtedness for borrowed money aggregating for all such agreements in excess of $500,000 150,000 of, or guaranteed by, APR, or $5,000,000 of, or guaranteed by, Parent or (B) pursuant to which APR or Parent shall have sold interests in receivables to, or shall otherwise have financed receivables with, any Seller Party Person, where the purchaser's investment is in the aggregate for all such transactions in excess of $150,000 in the case of APR or $5,000,000 in the case of Parent, which default or similar event, if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or bothnotice) would permit acceleration of the maturity of such indebtedness or would require the permanent reduction of such purchaser's investment and such default or similar event shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration or reduction and any notice of default or similar event required to permit acceleration or reduction shall have been given; or or
(iie) a "Purchase Termination Event" Adverse Determinations shall have occurred and be continuing under in three or more states or in states in which Direct or Insurance Obligors reside representing the Sale Agreement; aggregate of 5% or (iii) any default under any other agreement or instrument relating to more of the purchase of receivables of any Seller Party, or any other event, shall occur and shall continue after Receivables in the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesReceivables Pool; or
(ef) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Seller, APR or SellerParent or any Affiliate of any thereof; or
(i) Any material litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator Administrator, the Relationship Bank and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK Seller, APR or Seller Parent or any Affiliate of any thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE clause (Ii) or (IIii), in the opinion of the AdministratorAdministrator or the Relationship Bank, has a reasonable likelihood of having a Material Adverse Effect; or
(gh) The average Excess Yield Ratio at any Cut-Off Date calculated for the three most recent Settlement Periods (calculated with pro forma calculations of the Excess Yield Ratio for the number of calendar months preceding the date hereof necessary to make the calculations required by this paragraph (h)) is less than 3.00%; or
(i) The average Default Ratio at any Cut-Off Date calculated for the three most recent Settlement Periods (calculated with pro forma calculations of the Default Ratio for the number of calendar months preceding the date hereof necessary to make the calculations required by this paragraph (i)) exceeds XXX1.00%; or
(hj) The average Cancellation Ratio at any Cut-Off Date calculated for the three most recent Settlement Periods (calculated with pro forma calculations of the Cancellation Ratio for the number of calendar months preceding the date hereof necessary to make the calculations required by this paragraph (j)) exceeds 4.00%; or
(k) The Delinquency Ratio at any Cut-Off Date exceeds XXX3.00%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(kl) There shall exist any event or occurrence that would reasonably be expected to have has a reasonable possibility of causing a Material Adverse Effect; or
(lm) There The Purchaser's Share on account of Principal Receivables shall have occurred at any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchasetime exceed 100%; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) Any Servicer (if KBK any Seller Party or any Affiliate of KBK thereof is Servicer) or the Seller (in the case of clause (ii) below) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer the Servicers hereunder (other than as referred to in CLAUSE clause (IIii) belowbelow or in other paragraphs of this SECTION 10.1) and such failure shall remain unremedied for one Business Day thirty (30) days after written notice thereof shall have been given by the Administrative Agent to the Servicers or the Servicers shall have otherwise become aware, or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, in the case of payments under SECTION 13.02, such which failure shall remain unremedied continue for ten five (105) days); or
(b) Any representation or warranty made or deemed to be made by KBK or any Seller Party (or any of its officers) under or in connection with this Agreement or any other Transaction Document or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Any Seller or KBK (individually or as Servicer) Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days thirty (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (1030) days) days after (A) written notice thereof shall have been given to Seller or KBK by the Administrator Administrative Agent to any Seller Party or the Relationship Bank or (B) such Seller or KBK has actual knowledgeParty shall have otherwise become aware; or
(i) A default Any Seller Party shall have occurred and be continuing under (A) fail to pay any instrument principal or agreement evidencinginterest, securing or providing for regardless of amount, due in respect of any Indebtedness when the issuance of indebtedness for borrowed money aggregate unpaid principal amount is in excess of in the case of the Seller, $500,000 of10,750, or guaranteed byin the case of any other Seller Party, $10,000,000 when and as the same shall become due and payable (after expiration of any Seller Party which default applicable grace period) or (B) fail to observe or perform any other term, covenant, condition or agreement (after expiration of any applicable grace period) contained in any agreement or instrument evidencing or governing any such Indebtedness if unremedied, uncuredthe effect of any failure referred to in this clause (B) is to cause, or unwaived permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the passage giving of notice, the lapse of time or the giving of notice or both) would permit acceleration of the maturity of to cause, such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough Indebtedness to permit such acceleration and any notice of default required become due prior to permit acceleration shall have been givenits stated maturity; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables in an aggregate amount in excess of in the case of the Seller, $10,750, or in the case of any other Seller PartyParty $10,000,000, 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 (A) is to terminate, or permit the termination of, of the commitment of any party to such agreement or instrument to purchase receivables or the right of any such Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesreceivables or (B) is to terminate such commitment or right; or (iii) a default or trigger event shall occur under any asset securitization agreement or arrangement entered into by any Seller Party for the sale of receivables or an interest therein in excess of $10,000,000; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK the Servicers or Sellerany Seller Party; or
(if) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or The rolling three month average Dilution Ratio at any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectCut-Off Date exceeds 5.00%; or
(g) the The rolling three month average Default Ratio at any Cut-Off Date exceeds XXX2.50%; or
(h) the The rolling three month average Delinquency Ratio at (i) any Cut-Off Date occurring on or prior to August 31, 2000, exceeds XXX3.25% and (ii), any Cut-Off Date occurring after August 31, 2000, exceeds 2.50%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or[RESERVED];
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C3.1(c), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, 100% or (ii) the sum of (A) the Purchaser's Total Investment and (B) the aggregate CP Discount exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller Georgia Gulf or the Originator GGCV to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial first Purchase, or any other event occurs that is reasonably likely to have a Material Adverse Effect; or
(ml) KBK or Any Seller Party is subject to a Change in ControlControl (unless approved in writing by Purchaser); or
(nm) 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 Seller the Receivables or Servicer Related Assets and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller the Receivables or Servicer Related Assets; or
(n) Georgia Gulf or GGCV shall make any material change in the policies as to origination of Receivables or in the Credit and such lien shall not have been released within five daysCollection Policy without the prior written consent of the Administrative Agent; or
(o) Failure to obtain The Purchaser, for any reason, does not have a Liquidity Agreement valid, perfected first priority interest in substitution for the then existing Liquidity Agreement on or before 30 days prior to Pool Receivables and the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in lawRelated Assets; or
(ip) A Downgrading Event a final judgment or judgments shall be rendered against Georgia Gulf, GGCV, the Seller or any combination thereof for the payment of money with respect to which an aggregate amount in excess of $10,750 with respect to the Seller and $10,000,000 with respect to Georgia Gulf and GGCV is not covered by insurance and the same shall remain undischarged for a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank period of 30 consecutive days during which execution shall not have been replaced be effectively stayed, or any action shall be legally taken by a Qualifying Liquidity Bank pursuant judgment creditor to a Liquidity Agreement in form and substance acceptable levy upon assets or properties of Georgia Gulf or GGCV or the Seller to Purchaser and the Administrator, and (iii) the commitment of enforce any such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;judgment; or
(q) Purchaser shall become an "investment company" a Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Investment Company Act Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of 1940Georgia Gulf or GGCV to the Pension Benefit Guaranty Corporation ("PBGC") or to a Plan in an aggregate amount exceeding $10,000,000 and, within 30 days after the reporting of any such Reportable Event to the Administrative Agent, on the Purchaser's behalf, the Administrative Agent shall have notified Georgia Gulf or GGCV in writing that (i) the Administrative Agent, on the Purchaser's behalf, has made a determination that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as amended;a result thereof a Liquidation Event exists hereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan or Plans; or the PBGC shall institute proceedings to terminate any Plan or Plans; or
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor the occurrence of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Sellera Servicer Default.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Georgia Gulf Corp /De/)
Liquidation Events. The Any of the following events shall be constitute a "LIQUIDATION EVENTS" hereunderEVENT":
(a) Servicer (if KBK an Event of Bankruptcy shall occur with respect to the Issuer or any Affiliate of KBK is Servicer) (i) Seller, or any Seller shall fail to perform become unable for any reason to, or observe shall for any termother reason cease to, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in CLAUSE (II) below) and such failure shall remain unremedied for one Business Day or (ii) shall fail to make any payment or deposit to be made by it hereunder when due (and, transfer interests in the case Receivables or Related Transferred Assets to the Issuer in accordance with the Purchase Agreement; PROVIDED, HOWEVER, that if, at any time prior to the Liquidation Commencement Date, a Liquidation Event occurs pursuant to this SECTION 9.01(a) as a result of payments under a bankruptcy proceeding being filed by or against the Issuer or any Seller, then, notwithstanding anything to the contrary in this SECTION 13.029.01(a) or in the definition of "LIQUIDATION COMMENCEMENT DATE," on and after the day on which such a bankruptcy proceeding is filed, such failure the Issuer shall remain unremedied for ten (10) days); orcease to purchase Receivables and the Related Purchased Assets from all of the Sellers and the Purchase Termination Date shall be deemed to have automatically occurred;
(b) Any representation or warranty made or deemed to be made by KBK or Seller (or any of its officers) under or in connection with this Agreement or any Information Package or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement); or
(c) Seller or KBK (individually or as Servicer) shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain unremedied for five Business Days (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (10) days) after (A) written notice thereof shall have been given to Seller or KBK by the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledge; or
(i) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $500,000 of, or guaranteed by, any Seller Party which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse Effect; or
(g) the Default Ratio at any Cut-Off Date exceeds XXX; or
(h) the Delinquency Ratio at any Cut-Off Date exceeds XXX; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(C), (i) the Asset Interest exceeds the Allocation Limit, and the Asset Interest is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limit; or
(k) There shall exist any event or occurrence that would reasonably be expected to have a Material Adverse Effect; or
(l) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller is subject to a Change in Control; or
(n) 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 Seller or Servicer and such lien shall not have been released within five days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any assets of Seller or Servicer and such lien shall not have been released within five days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser Issuer shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(rc) Seller the Aggregate Net Outstandings shall fail to grant exceed the Base Amount for a period of five or maintain valid more consecutive Business Days;
(d) the occurrence and perfected ownership and security interests in favor continuance of Purchasera Servicer Default; or
(se) An Event any failure by the Issuer to make any payment, transfer or deposit required by this Indenture or any Supplement to be made by it or to give instructions or to give notice to the Trustee, the Administrative Agent or the Paying Agent (if other than the Administrative Agent) to make such payment, transfer or deposit, which failure continues unremedied (A) in the case of Bankruptcy payments of interest on the Notes, for five Business Days and (B) in the case of all payments not included in CLAUSE (A) above, for seven Business Days after the date on which an Authorized Officer of the Issuer has actual knowledge of such failure. Upon the occurrence of any event described in SUBSECTION (a) or (b) above, the Liquidation Commencement Date and the Purchase Termination Date shall occur without any notice or other action on the part of the Trustee or the Noteholders, immediately upon the occurrence of such Liquidation Event. On the tenth day after the Issuer receives notice of or becomes aware of (as evidenced by the Daily Reports for the Business Days in question), the occurrence of the event described in SUBSECTION (c) above, the Liquidation Commencement Date shall occur without any notice or other action on the part of the Trustee or the Noteholders. Upon the occurrence and during the continuance of any event described in SUBSECTION (d) or (e) above, after the applicable grace period, if any, set forth in such subsection, the Majority Noteholders may (or the Trustee, at the direction of the Majority Noteholders, shall) by notice then given in writing to the Issuer, the Administrative Agent, and the Servicer, declare that the Liquidation Commencement Date and the Purchase Termination Date shall have occurred as of the date of Issuer's receipt of such notice. Notwithstanding the foregoing, a delay in or failure in performance referred to in SUBSECTION (e) above for a period of 10 Business Days after the applicable grace period shall not (unless such delay or failure continues after such 10 Business Day period) constitute a Liquidation Event if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Issuer and remain continuing with respect to such delay or failure was caused by an Affiliate act of KBK God or the Sellerpublic enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve the Issuer from using its best efforts to perform its obligations in a timely manner in accordance with the terms hereof and of the other Transaction Documents, and the Issuer shall promptly give the Trustee and the Administrative Agent an Officer's Certificate notifying them of such failure or delay by it.
Appears in 1 contract
Samples: Master Trust Indenture and Security Agreement (Stone Container Corp)
Liquidation Events. The following events shall be "LIQUIDATION EVENTSLiquidation Events" hereunder:
(a) (i) Servicer (if KBK Parent or any an Affiliate of KBK Parent is Servicer) (i) shall fail to perform or observe any term, covenant or agreement that is an obligation of Servicer hereunder to provide any Servicer Report or Mid-Month Report when due hereunder, (other than as referred ii) Servicer (if Parent or an Affiliate of Parent is Servicer) shall fail to in CLAUSE perform any obligation of Servicer pursuant to Section 8.02(a) or (II) belowc) and such failure shall remain unremedied for one more than three Business Day Days after written notice thereof shall have been given by the Administrator to Servicer or (iiiii) Seller or Servicer (if Parent or its Affiliate is Servicer) shall fail to make any payment or deposit to be made by it hereunder within two (2) Business Days of the date when due (and, in the case of payments under SECTION 13.02, such failure shall remain unremedied for ten (10) days)due; or
(b) Any representation or warranty made or deemed to be made by KBK Seller, Parent or Seller (or any of its officers) the Originator under or in connection with this Agreement Agreement, any other Transaction Document, any Mid-Month Report or any Information Package Servicer Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect inaccurate in any material respect when made (other than a breach of the representations set forth in SECTION 6.02(D) or (J) for which the Originator has satisfied its payment obligation under SECTION 3.5 of the Sale Agreement)made; or
(c) Seller Seller, Parent or KBK (individually or as Servicer) the Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any of the other Transaction Documents on its part to be performed or observed and any such failure shall remain continue unremedied for five Business Days thirty (or, in the case of the Seller with respect to obligations under SECTION 13.01 and 14.05, ten (1030) days) days after (A) written notice thereof shall have been given by the Administrator to Seller or KBK by Parent, as the Administrator or the Relationship Bank or (B) Seller or KBK has actual knowledgecase may be; or
(id) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money relating to Indebtedness in excess of $500,000 25,000,000 of, or guaranteed by, Parent or any Seller Party Subsidiary thereof, which default is a payment default or if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or (ii) a "Purchase Termination Event" shall have occurred and be continuing under the Sale Agreement; or (iii) any default under any other agreement or instrument relating to the purchase of receivables of any Seller Party, 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 is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of any Seller Party to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivablesacceleration; or
(e) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Asset Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage interest to the extent of the Asset Interest in each Pool Asset, free and clear of any other Lien (other than a Lien arising solely as the result of any action taken by a Purchaser or the Administrator) or (ii) cease to create with respect to the items described in Section 9.01, or the interest of the Administrator (for the benefit of Purchasers) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any other Lien (other than a Lien arising solely as the result of any action taken by a Purchaser or the Administrator); or
(f) An Event of Bankruptcy shall have occurred and remain continuing with respect to KBK Seller, Parent or Seller; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by KBK or Seller to the Administrator and Purchaser prior to the date of execution and delivery of this Agreement is pending against KBK or Seller or any Affiliate thereof, or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of CLAUSE (I) or (II), in the opinion of the Administrator, has a reasonable likelihood of having a Material Adverse EffectOriginator; or
(g) The average of the Default Ratio at Sales-Based Dilution Ratios for any three successive Cut-Off Date Dates exceeds XXX2.50%; or
(h) The average of the Delinquency Ratio at Default Ratios for any three successive Cut-Off Date Dates exceeds XXX1.25%; or
(i) Servicer (if any Seller Party or Affiliate thereof is Servicer) shall make any material change in the Credit and Collection Policy without the prior written consent of the Administrator and the Relationship Bank; or
(j) On any Settlement Date, after giving effect to the payments made under SECTION 3.01(CSection 3.01(c), (i) the Asset Interest exceeds the Allocation Limit, and ; or
(j) The average of the Asset Interest Delinquency Ratios for any three successive Cut-Off Dates is not reduced below the Allocation Limit within a period of one Business Day, or (ii) the Purchaser's Total Investment exceeds the Purchase Limitgreater than 3.60%; or
(k) The average of the Collection Ratios for any two consecutive Cut-Off Dates is less than 84%; or
(l) There shall exist any event or occurrence that would reasonably be expected to have has caused a Material Adverse Effect; or
(lm) There shall have occurred any event which materially adversely impairs the ability of Seller or the Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables included in the initial Purchase; or
(m) KBK or Seller Parent is subject to a Change in Change-in-Control; or
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five seven (7) days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Servicer Parent and such lien shall not have been released within five seven (7) days; or
(o) Failure to obtain a Liquidity Agreement in substitution for the then existing Liquidity Agreement on or before 30 days prior to the expiration of the commitments of the Liquidity Banks thereunder, or the early termination of the Liquidity Agreement as a result of default by Purchaser or a change in law; or
(i) A Downgrading Event with respect to a Liquidity Bank shall have occurred and been continuing for not less than 45 days, (ii) the Downgraded Liquidity Bank shall not have been replaced by a Qualifying Liquidity Bank pursuant to a Liquidity Agreement in form and substance acceptable to Purchaser and the Administrator, and (iii) the commitment of such Downgraded Liquidity Bank under the Liquidity Agreement shall not have been funded or collateralized in such a manner that such Downgrading Event will not result in a reduction or withdrawal of the credit rating applied to the Commercial Paper Notes by any of the rating agencies then rating the Commercial Paper Notes;
(q) Purchaser shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) Seller shall fail to grant or maintain valid and perfected ownership and security interests in favor of Purchaser; or
(s) An Event of Bankruptcy shall have occurred and remain continuing with respect to an Affiliate of KBK or the Seller.
Appears in 1 contract
