Allocation of Overhead. To the extent that the Seller, on the one hand, and the Servicer, the Parent, any Originator or any Affiliate thereof, on the other hand, have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and the Seller shall bear its fair share of such expenses, which may be paid through the Servicing Fee or otherwise. EXHIBIT V TERMINATION EVENTS The occurrence of any of the following shall constitute a “Termination Event”: (a) (i) the Seller, any Originator, CUSH or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for two (2) Business Days, (ii) the Seller or the Servicer shall fail to deliver any Information Package when due pursuant to this Agreement, and such failure shall continue unremedied for three (3) Business Days, (iii) Celanese International shall resign as the Servicer and no replacement acceptable to the Majority Purchaser Agents shall have been appointed in accordance with Section 4.1(e) of the Agreement or (iv) the Seller, any Originator, CUSH or the Servicer shall fail to perform or observe any other term, covenant or agreement under this Agreement or any other Transaction Document and such failure, solely to the extent capable of cure, shall continue unremedied for 30 days after the Seller, the Parent, CUSH, any Originator or the Servicer has knowledge or receives written notice thereof; (b) any representation or warranty made or deemed made by the Seller, CUSH, any Originator or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by the Seller, CUSH, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that such circumstance shall not constitute a Termination Event pursuant to this clause (b) if either (x) such breach is cured promptly (but not later than five (5) Business Days) after the Seller, CUSH, any Originator or the Servicer has knowledge or receives notice thereof or (y) such breach is of a representation or warranty that a Pool Receivable is an Eligible Receivable and the Purchased Interest will not exceed 100% after excluding such Pool Receivable from the Net Receivables Pool Balance; (c) this Agreement or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim, or the Administrator shall cease to have “control” (within the meaning of Section 9-104 of the UCC) of any Lock-Box Account; (d) the Seller, the Parent, CUSH, the Servicer, any Originator or any other Material Subsidiary shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, the Parent, CUSH, the Servicer, any Originator or any such Material Subsidiary seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 consecutive days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, the Parent, CUSH, the Servicer or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph; (e) the Seller, the Parent, CUSH, the Servicer or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally; (f) (i) the sum of (A) the Aggregate Capital, plus the Adjusted Aggregate LC Amount, plus (B) the Total Reserves, exceeds (ii) the sum of (A) Net Receivables Pool Balance at such time, plus (B) the Purchasers’ Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing accrued Discount and Fees), and such circumstance shall not have been cured within two (2) Business Days; (g) (x) any event or condition occurs that (A) results in any Material Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (y) Parent or any Parent Subsidiary shall fail to pay the principal of any Material Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) at the stated final maturity thereof; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is not prohibited hereunder and is permitted under the documents providing for such Indebtedness; (h) a Change in Control shall occur; (i) (A) a Reportable Event or Reportable Events shall have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (B) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (C) Parent or any Parent Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such Person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) Parent or any Parent Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, or (E) Parent or any Parent Subsidiary or any ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect; (j) either (i) a lien shall arise pursuant to Section 430(k) of the Code or Section 303(k) of ERISA with regard to any assets of the Seller and such lien shall not have been released within five (5) days, or (ii) the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller, or (iii) a judgment lien shall be imposed on the assets of the Seller in connection with a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to one or more Plans or Multiemployer Plans; (k) the average for three consecutive calendar months of: (A) the Loss Ratio shall exceed 1.00%, (B) the Default Ratio shall exceed 2.25% or (C) the Dilution Ratio shall exceed 4.50%; (l) the Seller shall fail (i) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 3(c) of Exhibit IV to this Agreement for Independent Directors, on the Seller’s board of directors or (ii) to timely notify the Administrator of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to such Section 3(c); (m) any Letter of Credit is drawn upon and is not fully reimbursed by the Seller as required pursuant to Section 1.14; (n) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, the Servicer, the Parent or any Originator shall so state in writing; or (o) any judgment or order for the payment of money in an aggregate amount in excess of $40,000,000 (or, in the case of a judgment rendered against the Seller, $14,425) shall be rendered against Parent or any Material Subsidiary and the same shall remain undischarged for a period of 30 consecutive days during which execution (other than any enforcement proceedings consisting of the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar execution process in respect of such judgment lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing, or has been completed, in respect of any material assets or properties of Parent or any Material Subsidiary (collectively, “Permitted Execution Actions”)) shall not be effectively stayed, or any action, other than a Permitted Execution Action, shall be legally taken by a judgment creditor to attach or levy upon any material assets or properties of Parent or any Material Subsidiary to enforce any such judgment or order; provided, however, that with respect to any such judgment or order that is subject to the terms of one or more settlement agreements that provide for the obligations thereunder to be paid or performed over time, such judgment or order shall not be deemed hereunder to be undischarged unless and until Parent or the relevant Material Subsidiary, as applicable, shall have failed to pay any amounts due and owing thereunder (payment of which shall not have been stayed) for a period of 30 consecutive days after the respective final due dates for the payment of such amounts; or
Appears in 1 contract
Allocation of Overhead. To the extent that the Seller, on the one hand, and the Servicer, the Parent, any Originator or any Affiliate thereof, on the other hand, have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and the Seller shall bear its fair share of such expenses, which may be paid through the Servicing Fee or otherwise. EXHIBIT V TERMINATION EVENTS The occurrence of any of the following shall constitute a “Termination Event”:
(a) (i) the Seller, any Originator, CUSH the Parent or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain continue unremedied for two three (23) Business Days, (ii) the Seller or the Servicer shall fail to deliver any Information Package when due pursuant to this Agreement, and such failure shall continue unremedied for three two (32) Business Days, (iii) Celanese International Lyondell Chemical shall resign as the Servicer Servicer, and no replacement acceptable successor Servicer reasonably satisfactory to the Majority Administrator and each Purchaser Agents Agent shall have been appointed in accordance with Section 4.1(e) of the Agreement or (iv) the Seller, any Originator, CUSH the Parent or the Servicer shall fail to perform or observe any other term, covenant or agreement under this Agreement or any other Transaction Document and such failure, solely to the extent capable of cure, shall continue unremedied for 30 thirty (30) days after the Seller, the Parent, CUSH, any Originator or the Servicer has knowledge or receives written notice thereof;
(b) any representation or warranty made or deemed made by the Seller, CUSHthe Parent, any Originator or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by the Seller, CUSHthe Parent, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that such circumstance shall not constitute a Termination Event pursuant to this clause (b) if either (xi) such breach is cured corrected promptly (but not later than five (5) Business Days) after the Seller, CUSHthe Parent, any Originator or the Servicer has knowledge or receives notice thereof or (yii) such breach is of a representation or warranty that a Pool Receivable is an Eligible Receivable and the Purchased Interest will not exceed 100% after excluding such Pool Receivable from the Net Receivables Pool Balance;
(c) this Agreement or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim, or the Administrator shall cease to have “control” (within the meaning of Section 9-104 of the UCC) of any Lock-Box Account;
(d) the Seller, the Parent, CUSH, the Servicer, Servicer or any Originator or any other Material Subsidiary shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, the Parent, CUSH, the Servicer, Servicer or any Originator or any such Material Subsidiary seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 consecutive days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, the Parent, CUSH, the Servicer or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(e) the Seller, the Parent, CUSH, the Servicer or any Originator shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally;
(f) (i) the sum of (A) the Aggregate Capital, plus the Adjusted Aggregate LC Participation Amount, plus (B) the Total Reserves, exceeds (ii) the sum of (A) Net Receivables Pool Balance at such time, plus (B) the Purchasers’ Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing accrued Discount and Feesfees), and such circumstance shall not have been cured within two (2) Business Days;
(g) (x) default shall occur under any event or condition occurs that (A) results in any Material Indebtedness (including Indebtedness under Debt of the Celanese Credit Agreement to the extent constituting Material Indebtedness) becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (y) Parent or any Parent Subsidiary shall fail of its Subsidiaries aggregating in excess of $150,000,000, or under any indenture, agreement or other instrument under which the same may be issued, the effect of such default is to pay cause the principal acceleration of the maturity of any Material such Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) at the stated final maturity thereof; provided that this clause (g) whether automatically or otherwise), or any such Debt shall not apply to secured Indebtedness that becomes be paid when due as a result (whether by demand, lapse of the voluntary sale time, acceleration or transfer otherwise) after expiry of the property securing such Indebtedness if such sale or transfer is not prohibited hereunder and is permitted under the documents providing for such Indebtednessany applicable grace period;
(h) the “ Leverage Ratio” (subject to Section 5.1, as such term and any defined terms used therein are defined in the Lyondell Credit Agreement as in effect on the Closing Date, without giving effect to any subsequent amendments or modifications thereto and regardless if the Lyondell Credit Agreement is subsequently terminated or replaced) as of the last day of any fiscal quarter of the Parent shall exceed 3.50 to 1.00;the applicable level set forth below adjacent to such fiscal quarter:
(i) a Change in Control shall occur;
(ij) (A) a Reportable Event any member of the Controlled Group shall fail to pay when due an amount or Reportable Events amounts aggregating in excess of $100,000,000 which it shall have occurred with respect become liable to any pay to the PBGC or to a Plan subject to Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $100,000,000 (collectively, a trustee “Material Plan”) shall be appointed filed under Title IV of ERISA by a United States district court to administer the Parent or any Planof its Subsidiaries, (B) or any other member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings (including giving notice under Title IV of intent thereof) ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or Plans, (C) a proceeding shall be instituted by a fiduciary of any Material Plan against the Parent or any Parent Subsidiary of its Subsidiaries, or any member of the Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA Affiliate and such proceeding shall not have been notified by the sponsor of dismissed within 30 days thereafter; or a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such Person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) Parent or any Parent Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, or (E) Parent or any Parent Subsidiary or any ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect by reason of which the PBGC would be entitled to obtain a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, would reasonably decree adjudicating that any Material Plan must be expected to have a Material Adverse Effectterminated;
(jk) either (i) the Internal Revenue Service shall file notice of a lien shall arise pursuant to Section 430(k) 6323 of the Code or Section 303(k) of ERISA with regard to any assets of the Seller and such lien shall not have been released within five (5) days, or (ii) the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller, or (iii) a judgment lien shall be imposed on the assets of the Seller in connection with a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to one or more Plans or Multiemployer Plans;
(kl) the average for three consecutive calendar months of: (A) the Loss Ratio shall exceed 1.002.0%, (B) the Default Delinquency Ratio shall exceed 2.255.5% or (C) the Dilution Ratio shall exceed 4.504.5%;
(lm) the Seller shall fail (i) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 3(c) of Exhibit IV to this Agreement for Independent Directors, on the Seller’s board of directors or (ii) to timely notify the Administrator of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to such Section 3(c);
(mn) any Letter of Credit is drawn upon and is not fully reimbursed by the Seller Seller, or funded by Participation Advances as required pursuant to Section 1.14;
(no) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, the Servicer, the Parent or any Originator shall so state in writing; or
(o) any judgment or order for the payment of money in an aggregate amount in excess of $40,000,000 (or, in the case of a judgment rendered against the Seller, $14,425) shall be rendered against Parent or any Material Subsidiary and the same shall remain undischarged for a period of 30 consecutive days during which execution (other than any enforcement proceedings consisting of the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar execution process in respect of such judgment lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing, or has been completed, in respect of any material assets or properties of Parent or any Material Subsidiary (collectively, “Permitted Execution Actions”)) shall not be effectively stayed, or any action, other than a Permitted Execution Action, shall be legally taken by a judgment creditor to attach or levy upon any material assets or properties of Parent or any Material Subsidiary to enforce any such judgment or order; provided, however, that with respect to any such judgment or order that is subject to the terms of one or more settlement agreements that provide for the obligations thereunder to be paid or performed over time, such judgment or order shall not be deemed hereunder to be undischarged unless and until Parent or the relevant Material Subsidiary, as applicable, shall have failed to pay any amounts due and owing thereunder (payment of which shall not have been stayed) for a period of 30 consecutive days after the respective final due dates for the payment of such amounts; or
Appears in 1 contract
Sources: Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Allocation of Overhead. To the extent that the Seller, on the one hand, and the Servicer, the Parent, any Originator or any Affiliate thereof, on the other hand, have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and the Seller shall bear its fair share of such expenses, which may be paid through the Servicing Fee or otherwise. EXHIBIT V TERMINATION EVENTS The occurrence of any of the following shall constitute a “Termination Event”:
(a) (i) the Seller, any Originator, CUSH or the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document and such failure shall remain unremedied for two (2) Business Days, (ii) the Seller or the Servicer shall fail to deliver any Information Package when due pursuant to this Agreement, and such failure shall continue unremedied for three (3) Business Days, (iii) Celanese International shall resign as the Servicer and no replacement acceptable to the Majority Purchaser Agents shall have been appointed in accordance with Section 4.1(e) of the Agreement or (iv) the Seller, any Originator, CUSH or the Servicer shall fail to perform or observe any other term, covenant or agreement under this Agreement or any other Transaction Document and such failure, solely to the extent capable of cure, shall continue unremedied for 30 days after the Seller, the Parent, CUSH, any Originator or the Servicer has knowledge or receives written notice thereof;
(b) any representation or warranty made or deemed made by the Seller, CUSH, any Originator or the Servicer (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by the Seller, CUSH, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that such circumstance shall not constitute a Termination Event pursuant to this clause (b) if either (x) such breach is cured promptly (but not later than five (5) Business Days) after the Seller, CUSH, any Originator or the Servicer has knowledge or receives notice thereof or (y) such breach is of a representation or warranty that a Pool Receivable is an Eligible Receivable and the Purchased Interest will not exceed 100% after excluding such Pool Receivable from the Net Receivables Pool Balance;
(c) this Agreement or any purchase or reinvestment pursuant to this Agreement shall for any reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid and enforceable first priority perfected undivided percentage ownership or security interest to the extent of the Purchased Interest in each Pool Receivable, the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool Assets, or the interest of the Administrator with respect to such Pool Assets shall cease to be, a valid and enforceable first priority perfected security interest, free and clear of any Adverse Claim, or the Administrator shall cease to have “control” (within the meaning of Section 9-104 of the UCC) of any Lock-Box Account;
(d) the Seller, the Parent, CUSH, the Servicer, any Originator or any other Material Subsidiary shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, the Parent, CUSH, the Servicer, any Originator or any such Material Subsidiary seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 consecutive days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, the Parent, CUSH, the Servicer or any Originator shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;
(e) the Seller, the Parent, CUSH, the Servicer Servicer, any Originator or any Originator Material Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally;
(f) (i) the sum of (A) the Aggregate Capital, plus the Adjusted Aggregate LC Amount, plus (B) the Total Reserves, exceeds (ii) the sum of (A) Net Receivables Pool Balance at such time, plus (B) the Purchasers’ Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set aside therein representing accrued Discount and Fees), and such circumstance shall not have been cured within two (2) Business Days;
(g) (xi) the Parent, CUSH, any Parent Subsidiary or the Seller shall default in the payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) of any amount owing in respect of any Indebtedness in a principal amount in excess of the Threshold Amount and such default shall continue beyond any applicable grace period; or (ii) the Parent, CUSH, any Parent Subsidiary or the Seller shall default in the performance or observance of any obligation or condition with respect to any Indebtedness or any other event shall occur or condition exist, if the effect of such default, event or condition occurs that (A) results in is to accelerate the maturity of any Material such Indebtedness (including Indebtedness under the Celanese Credit Agreement or to the extent constituting Material Indebtedness) becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) permit the holder or holders of any Material Indebtedness (including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) thereof, or any trustee or agent on its for such holders, to accelerate the maturity of any such Indebtedness, unless, in each case, waived by such holder or their behalf to cause any Material Indebtedness to become dueholders, or (iii) any such Indebtedness shall become or be declared to require the prepayment, repurchase, redemption or defeasance thereof, be due and payable prior to its stated maturity other than as a result of a regularly scheduled maturity or (y) Parent or any Parent Subsidiary shall fail to pay payment, and the principal amount of any Material such Indebtedness exceeds the Threshold Amount (not including Indebtedness under the Celanese Credit Agreement to the extent constituting Material Indebtedness) at the stated final maturity thereof; provided that this clause (giii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if or as a result of a casualty event affecting such sale property or transfer is not prohibited hereunder and is permitted under the documents providing for such Indebtednessassets);
(h) a Change in Control shall occur;
(i) (A) a Reportable Event or Reportable Events shall have occurred with respect to any Plan or a trustee shall be appointed by a United States district court to administer any Plan, (B) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (C) Parent or any Parent Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such Person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, (D) Parent or any Parent Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization critical status, insolvent or is being terminated, within the meaning of Title IV of ERISA, or (E) Parent or any Parent Subsidiary or any ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (F) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;
(j) either (i) a lien shall arise pursuant to Section 430(k) of the Code or Section 303(k) of ERISA with regard to any assets of the Seller and such lien shall not have been released within five (5) days, or (ii) the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Seller, or (iii) a judgment lien shall be imposed on the assets of the Seller in connection with a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to one or more Plans or Multiemployer Plans;
(k) the average for three consecutive calendar months of: (A) the Loss Ratio shall exceed 1.003.00%, (B) the Default Ratio shall exceed 2.253.00% or (C) the Dilution Ratio shall exceed 4.507.00%;
(l) the Seller shall fail (i) at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 3(c) of Exhibit IV to this Agreement for Independent Directors, on the Seller’s board of directors or (ii) to timely notify the Administrator of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to such Section 3(c);
(m) any Letter of Credit is drawn upon and is not fully reimbursed by the Seller as required pursuant to Section 1.14;
(n) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Seller, the Servicer, the Parent or any Originator shall so state in writing; or
(o) any judgment or order for the payment of money in an aggregate amount in excess of $40,000,000 the Threshold Amount (or, in to the case of a judgment rendered against the Seller, $14,425extent not covered by independent third-party insurance as to which insurer does not dispute coverage) shall be rendered against Parent or any Material Subsidiary and the same shall remain undischarged for a period of 30 consecutive days during which execution (other than any enforcement proceedings consisting of the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar execution process in respect of such judgment lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing, or has been completed, in respect of any material assets or properties of Parent or any Material Subsidiary (collectively, “Permitted Execution Actions”)) shall not be effectively stayed, or any action, other than a Permitted Execution Action, shall be legally taken by a judgment creditor to attach or levy upon any material assets or properties of Parent or any Material Subsidiary to enforce any such judgment or order; provided, however, that with respect to any such judgment or order that is subject to the terms of one or more settlement agreements that provide for the obligations thereunder to be paid or performed over time, such judgment or order shall not be deemed hereunder to be undischarged unless and until Parent or the relevant Material Subsidiary, as applicable, shall have failed to pay any amounts due and owing thereunder (payment of which shall not have been stayed) for a period of 30 consecutive days after the respective final due dates for the payment of such amounts; or
Appears in 1 contract