Manager Default. Each of the following is a Manager Default: 9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (B) deliver when due to the Indenture Trustee any Manager Report and such failure is not cured within seven (7) days. 9.1.2 The Manager shall fail to (A) deliver any report required to be delivered pursuant to the provisions of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof and such failure shall continue unremedied for fifteen (15) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure shall continue unremedied for a period of fifteen (15) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure and (ii) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder or either Lead Arranger. 9.1.3 Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto proves to have been untrue in any material respect when made. 9.1.4 There shall be a Change of Control of the Manager provided that a Change of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Default. 9.1.5 SCL ceases to carry on the whole, or substantially the whole, of its container business. 9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented to, or an order shall be made by, a competent court for the appointment of an administrator of the Manager or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability of the Issuer to perform its material obligations under the Transaction Documents. 9.1.7 [Reserved]. 9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days. 9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code. 9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement. 9.1.11 The Manager sells, conveys, transfers or assigns all, or substantially all, of its assets to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.
Appears in 1 contract
Manager Default. Each of the following is a Manager Default:
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within three (3) Business Days after the date such deposit is due; provided, that if such Container Revenues, Sales Proceeds, Casualty Proceeds or other amounts are on deposit in the Concentration Account (or a related post office box or lockbox), failure of the bank holding the Concentration Account to comply with the instructions of the Manager (or to comply with the terms of any intercreditor agreement) shall not constitute a Manager Default.
9.1.2 The Manager shall fail (A) to deliver any report required to be delivered to the Indenture Trustee pursuant to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue unremedied for three (3) Business Days or (B) in any material respect to perform the covenant of the Manager to deliver when due to financial statements set forth in the Indenture Trustee any Manager Report second sentence of Section 4.1.1 and such failure shall continue unremedied for thirty (30) days after the date on which there has been given to the Manager by the Indenture Trustee, the Administrative Agent, any Series Enhancer or any Noteholder a written notice specifying such default or breach and requiring it to be remedied; provided, however, that (x) if the reason for such failure is primarily attributable to changes in accounting principles or interpretations or the application of the same, (y) such changes are not cured within seven related to the assets of the Issuer and (7z) daysno Manager Default then exists under Sections 9.1.9 through 9.1.12 of this Agreement, then such failure shall not constitute a Manager Default under this subsection 9.1.2(B) unless such failure materially and adversely affects the interests of any Noteholder or any Series Enhancer (if such Series Enhancer is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment on its Enhancement Agreement).
9.1.2 9.1.3 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of any other Transaction Document (which is not otherwise addressed in Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof 9.1.2) and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein or in any other Transaction Document (including in its capacity as Seller) (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights interests of the Noteholders, Noteholders or (if it is then the Lead Arrangers, the Indenture Trustee Control Party for a Series of Outstanding Notes or the Administrative Agent shall have made an unreimbursed payment on its Enhancement Agreement) any Series Enhancer and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure and (ii) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder Noteholder, the Administrative Agent, any Series Enhancer or either Lead Arrangerany other Person.
9.1.3 9.1.4 Any representation or warranty made by the Manager in this AgreementAgreement or any other Transaction Document (including in its capacity as Seller), or in any certificate, report or financial statement delivered by it pursuant hereto or thereto proves to have been untrue in any material respect when made.
9.1.4 There shall be a Change of Control , such breach materially and adversely affects the interests of the Noteholders or (if it is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment on its Enhancement Agreement) any Series Enhancer and such breach, if capable of remedy, shall continue unremedied for a period of thirty (30) days after the date on which the Manager provided that a Change of Control occasioned by has received written notice specifying such failure from the implementation of a restructuring otherwise satisfactory to Owner, the Lead ArrangersIndenture Trustee, pursuant to which (A) any Noteholder, the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006Administrative Agent, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Defaultany Series Enhancer or any other Person.
9.1.5 SCL TAL ceases to carry on be engaged in the whole, or substantially the whole, of its container leasing business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding commence a voluntary case concerning itself under the Bankruptcy Code; or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of involuntary case is commenced against the Manager or a any of its Subsidiaries and the petition shall be presented tois not controverted within 10 days, or an is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Manager; or the Manager commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager and such proceeding remains undismissed for a period of 60 days; or the Manager is adjudicated insolvent or bankrupt; or any order shall be made by, of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a competent court period of 60 days; or the Manager makes a general assignment for the appointment benefit of an administrator of the Manager creditors; or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed action is taken by the Manager to for the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability purpose of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in effecting any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.foregoing;
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 9.1.7 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 9.1.8 A Change of Control shall have occurred with respect to the Manager.
9.1.9 The Manager sells, conveys, transfers or assigns all, or substantially all, Leverage Ratio of its assets to any Person other than another member TAL International Group as of the SCL Group, or another member last day of any fiscal quarter shall be in excess of 4.75 to 1.00.
9.1.10 As of the SCL Group sellslast day of each fiscal quarter beginning with the fiscal quarter ending September 30, conveys2008, transfers or assigns all, or substantially all, the Consolidated EBIT to Consolidated Cash Interest Expense Ratio is less than 1.10 to 1.00.
9.1.11 As of the assets last day of each fiscal quarter, the Consolidated Tangible Net Worth of TAL International Group is less than the sum of (i) $321,351,326; plus (ii) an amount equal to fifty percent (50%) of the SCL Groupcumulative sum of the aggregate net income (or loss) of TAL International Group and its Consolidated Subsidiaries (as such term is defined in the Credit Agreement) on a consolidated basis, determined in each case whether in a single transaction or series accordance with GAAP for the period commencing on January 1, 2006 and terminating on such date of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Defaultdetermination.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each of the following is a Manager Default (and each of the events described in Sections 9.1.1 through 9.1.11 is a “Trust Manager Default:”):
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within one (1) Business Day after the date such deposit is due; provided, that if such failure to make a deposit shall result from administrative failure beyond the control of the Manager, the Manager shall have two (2) additional Business Days to cure such failure before such failure shall constitute a Manager Default.
9.1.2 The Manager shall fail (A) to deliver any report required to be delivered to the Indenture Trustee pursuant to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue unremedied for three (3) Business Days or (B) in any material respect to perform the covenant of the Manager to deliver when due to financial statements set forth in the Indenture Trustee any Manager Report second sentence of Section 4.1.1 and such failure shall continue unremedied for thirty (30) days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent or any Noteholder, a written notice specifying such default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Manager shall have knowledge of such default or breach; provided, however, that (x) if the reason for such failure is primarily attributable to changes in accounting principles or interpretations or the application of the same, (y) such changes are not cured within seven related to the assets of the Issuer and (7z) days.no Series Specific Manager Default then exists, then such failure shall not constitute a Manager Default under this Section 9.1.2(B) unless such failure materially and adversely affects the interests of any Noteholder;
9.1.2 9.1.3 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of any other Transaction Document (which is not otherwise addressed in Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof 9.1.2) and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein or in any other Transaction Document (including in its capacity as Seller) (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights interests of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date (x) on which an officer of there has been given to the Manager has actual knowledge of such failure and (ii) Manager, by the date on which Indenture Trustee, the Manager has received Transition Agent or any Noteholder, a written notice specifying such failure from default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Owner, the Indenture Trustee, any Noteholder Manager shall have knowledge of such default or either Lead Arrangerbreach.
9.1.3 9.1.4 Any representation or warranty made by the Manager in this AgreementAgreement or any other Transaction Document (including in its capacity as Seller), or in any certificate, report or financial statement delivered by it pursuant hereto or thereto proves to have been untrue in any material respect when made.
9.1.4 There , such breach materially and adversely affects the interests of the Noteholders, and such breach, if capable of remedy, shall continue unremedied for a period of thirty (30) days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent or any Noteholder, a written notice specifying such default or breach and requiring it to be a Change of Control remedied and (y) on which any Authorized Officer of the Manager provided that a Change shall have knowledge of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Defaultsuch default or breach.
9.1.5 SCL TAL ceases to carry on be engaged in the whole, container leasing or substantially the whole, of its container management business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding commence a voluntary case concerning itself under the Bankruptcy Code; or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of involuntary case is commenced against the Manager or a any of its Subsidiaries and the petition shall be presented tois not controverted within 10 days, or an is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Manager; or the Manager commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager and such proceeding remains undismissed for a period of 60 days; or the Manager is adjudicated insolvent or bankrupt; or any order shall be made by, of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a competent court period of 60 days; or the Manager makes a general assignment for the appointment benefit of an administrator of the Manager creditors; or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed action is taken by the Manager to for the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability purpose of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in effecting any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.foregoing;
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 9.1.7 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.8 Any of the Manager, TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or any Restricted Subsidiary (as such term is defined in the Credit Agreement) fails to make any payment when due (beyond the applicable grace or cure period with respect thereto, if any) or defaults in the observance or performance (beyond the applicable grace or cure period with respect thereto, if any) of any payment obligation, or any other agreement or covenant with respect to the Indebtedness that, individually or in the aggregate for all such Persons, exceeds Twenty Million Dollars ($20,000,000) and, such condition is not remedied by a permanent and unconditional cure or waiver of such default within thirty (30) days.
9.1.9 One or more judgments or decrees shall be entered against TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or any of its Restricted Subsidiaries (as such term is defined in the Credit Agreement) (other than a Special Purpose Vehicle (as such term is defined in the Credit Agreement)) involving a liability (to the extent not paid when due or covered by a reputable and solvent insurance company (with any portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in excess of Twenty Million Dollars ($20,000,000) for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days.
9.1.10 This Agreement shall at any time cease to be the legal, valid and binding obligation of the Manager, enforceable in accordance with its terms.
9.1.11 The Manager sellsshall fail to deliver to the Transition Agent the Back-up Data File in accordance with Section 3.10.3 hereof, conveysand such failure, transfers if capable of remedy, shall continue unremedied for a period of three (3) days after earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent or assigns allany Noteholder, a written notice specifying such default or substantially allbreach and requiring it to be remedied and (y) on which any Authorized Officer of the Manager shall have knowledge of such default or breach.
9.1.12 The occurrence of any other event or condition specified as an additional Manager Default in a Supplement for any Series of Notes then Outstanding (each, a “Series Specific Manager Default”), which Series Specific Manager Default continues beyond any grace and/or cure period set forth in the related Supplement or which has not been waived by the Control Party for such Series in accordance with (and within the timeframes specified in) the related Supplement. The occurrence of its assets to any Person a Trust Manager Default shall constitute an “Actionable Default” under the Intercreditor Agreement for so long as such Trust Manager Default is continuing. A Series Specific Manager Default may be waived in a written instrument by the Control Party for the related Series in accordance with the terms of such Supplement. All Manager Defaults other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Series Specific Manager Default may be waived in a written instrument executed by the Control Party Requisite Global Majority in each such instance. Any such waiver of a Trust Manager Default or Series Specific Manager Default, as the case may be, shall not be construed as a waiver of any subsequent Trust Manager Default or Series Specific Manager Default. No delay by the Requisite Global Majority or applicable Control Party Party, as the case may be, shall constitute any such waiver or any of its assignsprejudice the Requisite Global Majority or Control Party, as the case may be, in exercising any right, power or privilege arising out of such Trust Manager Default shall operate as a waiver of such or Series Specific Manager Default.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each Any of the following is events or conditions shall constitute a default of the Manager hereunder (“Manager Default:”):
9.1.1 (a) The Manager shall fail to (Ai) make any deposit to the Owner Bank Account when due hereunder and such default continues for five (5) days after the date Manager receives notice thereof (provided, however, that no Manager Default shall result from any deposits failure of CollectionsManager to deposit Distributable Net Owner Proceeds into the Owner Bank Account when the Manager exercises its option set forth in Section 6.1(a) to pay amounts actually collected or to reimburse itself for amounts remitted which were subsequently not collected or resulting from the failure of the Transaction Manager to deliver a Transaction Manager Report on or prior to the due date thereof), Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (Bii) deliver when due to the Indenture Trustee any a Manager Report on the due date thereof, and such failure is not cured within seven continues for ten (710) days.days after the date Manager receives notice thereof;
9.1.2 (b) The Manager shall fail to (Ai) deliver any report report, other than a Manager Report, required to be delivered to the Transaction Manager pursuant to Section 7 on the provisions of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof due date thereof and such failure shall continue unremedied default continues for fifteen ten (1510) days, Business Days after the date Manager receives notice thereof or (Bii) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which that is not otherwise specifically addressed in this Section 9.1)12.1, which failure materially and adversely affects the rights of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure and receives notice thereof;
(iic) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder or either Lead Arranger.
9.1.3 Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto proves to have been untrue in any material and adverse respect when made.
9.1.4 There shall be made and continues unremedied for a Change period of Control of thirty (30) days after the date the Manager provided that a Change of Control occasioned by receives notice thereof;
(d) The Manager shall cease to be engaged in the implementation of a restructuring otherwise satisfactory Container management business (subject to the Lead Arrangers, pursuant to which provisions of Force Majeure set forth in Section 17);
(Ae) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Default.
9.1.5 SCL ceases to carry on the whole, or substantially the whole, of its container business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency involuntary bankruptcy or insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented to, or an order shall be made by, a competent court for the appointment of an administrator of the Manager or shall commence an Insolvency Proceeding andManager, in the case of an involuntary Proceeding, and such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty thirty (6030) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations ;
(if anyf) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The Manager shall fail to pay any principal of, premium suspend payment of its debts generally or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerateunable to, or to permit the acceleration of (regardless of whether such amounts are actually accelerated)shall admit inability to, the maturity of such Indebtedness or otherwise to causepay its debts as they fall due, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute commence a Manager Default bankruptcy or insolvency Proceeding or shall take any company action in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders furtherance of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.action; or
9.1.10 (g) Except as permitted by Sections 2 15 and 13 hereof23.5, the Manager assigns or, so long as it is a Submanager, Interpool Containers Limited shall assign all or attempts to assign substantially all of its interest under this Agreement.
9.1.11 The ; provided that: (i) the Manager sells, conveys, transfers or assigns all, or substantially all, of and/or any Submanager may assign its assets rights (but not its obligations) under this Agreement to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in lender as security for a written instrument executed by the Control Party in each such instance. Any such waiver of commercial loan; (ii) a Manager Default (with respect to Manager) shall not be construed as occur if Submanager makes an assignment otherwise prohibited by this Section 13.1(g); and (iii) a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default (with respect to Submanager) shall operate as a waiver of such not occur if Manager Defaultmakes an assignment otherwise prohibited by this Section 13.1(g).
Appears in 1 contract
Manager Default. Each of the following is constitutes a Manager Default:
9.1.1 18.1 The failure by Manager shall fail to (A) make any deposit to the XTRA International Bank Account when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (B) to deliver an XTRA International Report when due to the Indenture Trustee any Manager Report and such failure is not cured within seven (7) days.
9.1.2 The Manager shall fail to (A) deliver any report required to be delivered pursuant to the provisions of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof and if such failure shall continue unremedied for fifteen a period of ten (1510) daysdays after delivery of written notice of demand therefor from XTRA International to Manager (a "Manager Payment Default");
18.2 The failure by Manager to observe or perform any of Manager's material obligations under this Agreement, or (B) perform or observeother than described in Clause 18.1 above, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and where such failure shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur delivery of (i) the date on which an officer of the Manager has actual knowledge of such failure and (ii) the date on which the Manager has received written notice specifying of demand therefor from XTRA International to Manager; provided, however, that if the nature of -------- ------- Manager's noncompliance is such failure from the Ownerthat more than thirty (30) days are reasonably required for its cure, the Indenture Trusteethen Manager shall not be deemed to be in default thereof if Manager, any Noteholder or either Lead Arranger.in good faith, has commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
9.1.3 18.3 Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto proves to have been untrue in any material respect when made.
9.1.4 There shall be made and continues unremedied for a Change period of Control thirty (30) days after the earlier to occur of the Manager provided that a Change of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (Ai) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control an officer of Manager to existing equityholders of having actual knowledge thereof, or (ii) Manager receiving notice thereof, provided, that such -------- misrepresentation has a Material Adverse Effect;
18.4 Manager shall not constitute a Manager Default.
9.1.5 SCL ceases cease to carry on the whole, whole or substantially the whole, whole of its container business.management business (except for an amalgamation, merger, reorganization or other similar arrangement not involving or arising out of the insolvency of Manager) ("Manager Dissolution Default");
9.1.6 The 18.5 Manager shall be adjudicated suspend payment of its debts generally or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented unable to, or an order shall be made byadmit inability to, a competent court for the appointment of an administrator of the Manager pay its debts as they fall due, or shall commence an Insolvency Proceeding and, in insolvency proceeding;
18.6 Manager shall (A) apply for or consent to the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or orderappointment of, or the presentation taking of such petitionpossession by, provided that a receiver, custodian, trustee, conservator or liquidator or the like of itself or of all or a substantial part of its property; (B) make a general assignment for the benefit of its creditors; (C) commence a voluntary case under the U.S. Bankruptcy Code (as now or hereafter in the case effect) or under any similar law of any voluntary commencement foreign jurisdiction; (D) file a petition seeking to take advantage of an Insolvency Proceeding by any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; or (E) fail for a period of more than ninety (90) days to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in any involuntary case under the U.S. Bankruptcy Code or under any similar law of any foreign jurisdiction;
18.7 A proceeding or case shall be commenced against Manager without its consent, in any court of competent jurisdiction (whether within or without the United States of America), seeking: (A) its liquidation reorganization, dissolution or winding-up, or the composition or readjustment of its debts; (B) the appointment of a trustee, receiver, custodian, conservator, liquidator or the like of Manager, such commencement shall not constitute an event or of default so long as the all or any substantial part of its assets; or (C) similar relief in respect of Manager continues under any law (foreign or domestic) relating to timely performbankruptcy, insolvency, reorganization, winding-up, or arranges for substitute timely performance composition or adjustment of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documentsdebts, and such proceeding or case shall continue undismissed, or (b) payment any order, judgment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability decree approving or ordering any of the Issuer to perform its material obligations under the Transaction Documents.foregoing shall be entered and continue unstayed and in effect, in each case for a period of more than ninety (90) days; or
9.1.7 [Reserved].
9.1.8 18.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the assets of Manager’s assets , and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 The Manager sells, conveys, transfers or assigns all, or substantially all, of its assets to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.
Appears in 1 contract
Sources: Equipment Management Services Agreement (Xtra Corp /De/)
Manager Default. Each of the following is a Manager Default:
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within three (3) Business Days after the date such deposit is due; provided, that if such Container Revenues, Sales Proceeds, Casualty Proceeds or other amounts are on deposit in the Concentration Account (or a related post office box or lockbox), failure of the bank holding the Concentration Account to comply with the instructions of the Manager (or to comply with the terms of any intercreditor agreement) shall not constitute a Manager Default.
9.1.2 The Manager shall fail (A) to deliver any report required to be delivered to the Indenture Trustee pursuant to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue unremedied for three (3) Business Days or (B) in any material respect to perform the covenant of the Manager to deliver when due to financial statements set forth in the Indenture Trustee any Manager Report second sentence of Section 4.1.1 and such failure shall continue unremedied for thirty (30) days after the date on which there has been given to the Manager by the Indenture Trustee, any Series Enhancer or any Noteholder a written notice specifying such default or breach and requiring it to be remedied; provided, however, that (x) if the reason for such failure is primarily attributable to changes in accounting principles or interpretations or the application of the same, (y) such changes are not cured within seven related to the assets of the Issuer and (7z) daysno Manager Default then exists under Sections 9.1.9 through 9.1.12 of this Agreement, then such failure shall not constitute a Manager Default under this subsection 9.1.2(B) unless such failure materially and adversely affects the interests of any Noteholder or any Series Enhancer (if such Series Enhancer is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment on its Policy).
9.1.2 9.1.3 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of any other Transaction Document (which is not otherwise addressed in Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof 9.1.2) and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein or in any other Transaction Document (including in its capacity as Seller) (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights interests of the Noteholders, Noteholders or (if it is then the Lead Arrangers, the Indenture Trustee Control Party for a Series of Outstanding Notes or the Administrative Agent shall have made an unreimbursed payment on its Policy) any Series Enhancer and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure and (ii) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder Noteholder, the Administrative Agent, any Series Enhancer or either Lead Arrangerany other Person.
9.1.3 9.1.4 Any representation or warranty made by the Manager in this AgreementAgreement or any other Transaction Document (including in its capacity as Seller), or in any certificate, report or financial statement delivered by it pursuant hereto or thereto proves to have been untrue in any material respect when made.
9.1.4 There shall be a Change of Control , such breach materially and adversely affects the interests of the Noteholders or (if it is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment on its Policy) any Series Enhancer and such breach, if capable of remedy, shall continue unremedied for a period of thirty (30) days after the date on which the Manager provided that a Change of Control occasioned by has received written notice specifying such failure from the implementation of a restructuring otherwise satisfactory to Owner, the Lead ArrangersIndenture Trustee, pursuant to which (A) any Noteholder, the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006Administrative Agent, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Defaultany Series Enhancer or any other Person.
9.1.5 SCL TAL ceases to carry on be engaged in the whole, or substantially the whole, of its container leasing business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding commence a voluntary case concerning itself under the Bankruptcy Code; or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of involuntary case is commenced against the Manager or a any of its Subsidiaries and the petition shall be presented tois not controverted within 10 days, or an is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Manager; or the Manager commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager and such proceeding remains undismissed for a period of 60 days; or the Manager is adjudicated insolvent or bankrupt; or any order shall be made by, of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a competent court period of 60 days; or the Manager makes a general assignment for the appointment benefit of an administrator of the Manager creditors; or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed action is taken by the Manager to for the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability purpose of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in effecting any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.foregoing;
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 9.1.7 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 9.1.8 A Change of Control shall have occurred with respect to the Manager.
9.1.9 The Manager sells, conveys, transfers or assigns all, or substantially all, Leverage Ratio of its assets to any Person other than another member TAL International Group as of the SCL Group, or another member last day of any fiscal quarter shall be in excess of 4.75 to 1.00.
9.1.10 As of the SCL Group sellslast day of each fiscal quarter, conveyscommencing with the fiscal quarter ending on December 31, transfers or assigns all2005, or substantially all, the Consolidated EBIT to Consolidated Cash Interest Expense Ratio is less than 1.10 to 1.00.
9.1.11 As of the assets last day of each fiscal quarter, commencing with the fiscal quarter ending on March 31, 2006, the Consolidated Tangible Net Worth of TAL International Group is less than the sum of (i) $321,351,326; plus (ii) an amount equal to fifty percent (50%) of the SCL Groupcumulative sum of the aggregate net income (or loss) of TAL International Group and its Consolidated Subsidiaries (as such term is defined in the Credit Agreement) on a consolidated basis, determined in each case whether in a single transaction or series accordance with GAAP for the period commencing on January 1, 2006 and terminating on such date of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Defaultdetermination.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each of the following is a Manager Default:
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within one (1) Business Day after the date such deposit is due; provided, that if such failure to make a deposit shall result from administrative failure beyond the control of the Manager, the Manager shall have two (2) additional Business Days to cure such failure before such failure shall constitute a Manager Default.
9.1.2 The Manager shall fail (A) to deliver any report required to be delivered to the Indenture Trustee pursuant to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue unremedied for three (3) Business Days or (B) in any material respect to perform the covenant of the Manager to deliver when due to financial statements set forth in the Indenture Trustee any Manager Report second sentence of Section 4.1.1 and such failure is not cured within seven shall continue unremedied for thirty (730) days.days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Administrative Agent, any Series Enhancer or any Noteholder, a written notice specifying such default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Manager shall have knowledge of such default or breach;
9.1.2 9.1.3 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of any other Transaction Document (which is not otherwise addressed in Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof 9.1.2) and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein or in any other Transaction Document (including in its capacity as Seller) (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent ) and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date (x) on which an officer of there has been given to the Manager has actual knowledge of such failure and (ii) Manager, by the date on which Indenture Trustee, the Manager has received Administrative Agent, any Series Enhancer or any Noteholder, a written notice specifying such failure from default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Owner, the Indenture Trustee, any Noteholder Manager shall have knowledge of such default or either Lead Arrangerbreach.
9.1.3 9.1.4 Any representation or warranty made by the Manager in this AgreementAgreement or any other Transaction Document (including in its capacity as Seller), or in any certificate, report or financial statement delivered by it pursuant hereto or thereto proves to have been untrue in any material respect when made.
9.1.4 There , and such breach, if capable of remedy, shall continue unremedied for a period of thirty (30) days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Administrative Agent, any Series Enhancer or any Noteholder, a written notice specifying such default or breach and requiring it to be a Change of Control remedied and (y) on which any Authorized Officer of the Manager provided that a Change shall have knowledge of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Defaultsuch default or breach.
9.1.5 SCL TAL ceases to carry on be engaged in the whole, container leasing or substantially the whole, of its container management business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding commence a voluntary case concerning itself under the Bankruptcy Code; or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of involuntary case is commenced against the Manager or a any of its Subsidiaries and the petition shall be presented tois not controverted within 10 days, or an is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Manager; or the Manager commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager and such proceeding remains undismissed for a period of 60 days; or the Manager is adjudicated insolvent or bankrupt; or any order shall be made by, of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a competent court period of 60 days; or the Manager makes a general assignment for the appointment benefit of an administrator of the Manager creditors; or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed action is taken by the Manager to for the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability purpose of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in effecting any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.foregoing;
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 9.1.7 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.8 A Change of Control shall have occurred with respect to the Manager.
9.1.9 The Leverage Ratio of TAL International Group as of the last day of any fiscal quarter shall be in excess of 4.75 to 1.00.
9.1.10 As of the last day of each fiscal quarter beginning with the fiscal quarter ending September 30, 2009, the Consolidated EBIT to Consolidated Cash Interest Expense Ratio is less than 1.10 to 1.00.
9.1.11 The Manager sellsAs of the last day of each fiscal quarter beginning with the fiscal quarter ending September 30, conveys2009, transfers the Consolidated Tangible Net Worth of TAL International Group is less than the sum of (i) $321,351,326; plus (ii) an amount equal to fifty percent (50%) of the cumulative sum of the aggregate net income of TAL International Group and its Consolidated Subsidiaries (as such term is defined in the Credit Agreement) on a consolidated basis, determined in accordance with GAAP for the period commencing on January 1, 2006 and terminating on such date of determination.
9.1.12 Any of the Manager, TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or assigns allany Restricted Subsidiary (as such term is defined in the Credit Agreement) fails to make any payment when due (beyond the applicable grace or cure period with respect thereto, if any) or defaults in the observance or performance (beyond the applicable grace or cure period with respect thereto, if any) of any payment obligation, or substantially allany other agreement or covenant with respect to the Indebtedness that, individually or in the aggregate for all such Persons, exceeds Twenty Million Dollars ($20,000,000) and, such condition is not remedied by a permanent and unconditional cure or waiver of such default within thirty (30) days.
9.1.13 One or more judgments or decrees shall be entered against TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or any of its assets Restricted Subsidiaries (as such term is defined in the Credit Agreement) (other than a Special Purpose Vehicle (as such term is defined in the Credit Agreement)) involving a liability (to the extent not paid when due or covered by a reputable and solvent insurance company (with any portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in excess of Twenty Million Dollars ($20,000,000) for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days.
9.1.14 This Agreement shall at any time cease to be the legal, valid and binding obligation of the Manager, enforceable in accordance with its terms. Notwithstanding the foregoing, if any of the covenants of the Manager or TAL International Group in any other credit facility of the Manager or TAL International Group (as applicable), which correspond to any Person other than another member of the SCL GroupManager Defaults contained in Section 9.1.9, or another member 9.1.10 and/or 9.1.11 hereof (as applicable), are amended in such a manner as to make any such covenants more restrictive than prior to the amendment thereof, such more restrictive covenants shall be automatically incorporated herein and the Manager hereby agrees to amend the corresponding provision(s) in this Agreement in order to document such inclusion. The occurrence of a Manager Default shall constitute an “Actionable Default” under the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactionsIntercreditor Agreement for so long as Manager Default is continuing. A Manager Default may be waived in a written instrument executed by the Control Party Requisite Global Majority in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party Requisite Global Majority or any of its assigns, shall constitute any such waiver or prejudice the Requisite Global Majority in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each 12.1 Any of the following is events or conditions shall constitute a Manager Default:
9.1.1 The (a) Manager shall fail to (Ai) make when due any deposits of Collectionsdeposit to the Head Lessee Collection Account the deposit required pursuant to Section 7.2 hereof, Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (Bii) deliver when due either or both of the Manager Report or the monthly Asset Base Certificate on the dates specified in Section 9.1 hereof or (iii) any Manager Report delivered by the Manager shall be inaccurate in any material respect and such inaccuracy shall continue unremedied for a period of thirty (30) days after the earlier to occur of (x) receipt by Manager of written notice thereof from Owner or the Indenture Trustee and (y) the date on which any of the President, Senior Vice President or any Executive Vice President of Manager Report and shall have actual knowledge of such failure failure; or;
(b) If a Trigger Event is not cured within seven (7) days.
9.1.2 The continuing, the Manager shall fail to pay the Back-up Manager Fee when due;
(Ac) deliver Manager shall fail to observe or perform any report required of the covenants, agreements or obligations set forth in any of Sections 9.11, 9.12 and 9.13 hereof;
(d) Manager shall fail to be delivered pursuant to the provisions of Section 4.1.1perform or observe any other covenant, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof and such failure shall continue unremedied for fifteen (15) dayscondition, or (B) perform or observe, or cause agreement to be performed or observed, observed by it under any Related Document (other than those identified in any material respect any other covenant or agreement contained herein clauses (which is not otherwise addressed in this Section 9.1a), which failure materially (b) and adversely affects the rights of the Noteholders(c) above), the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) receipt by Manager of written notice thereof from Owner or the date on which an officer of the Manager has actual knowledge of such failure Indenture Trustee and (ii) the date on which any of the President, Senior Vice President or any Executive Vice President of Manager has received written notice specifying shall have actual knowledge of such failure from the Owner, the Indenture Trustee, failure; or
(e) any Noteholder or either Lead Arranger.
9.1.3 Any representation or warranty made by the Manager in this Agreementany of the Related Documents, or in any certificatecertificate delivered pursuant thereto, report or financial statement delivered by it pursuant hereto proves shall prove to have been be untrue in any material respect when on the date of which made.; or
9.1.4 There shall be a Change of Control of (f) the Manager provided that a Change of Control occasioned by the implementation entry of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures decree or order for relief by a court having jurisdiction in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests Manager in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Default.
9.1.5 SCL ceases to carry on the wholeany involuntary case under any applicable Insolvency Law, or substantially the wholeother similar law now or hereafter in effect, of its container business.
9.1.6 The Manager shall be adjudicated or found bankrupt appointing a receiver, liquidator, assignee, custodian, trustee, or insolvent by any competent court in an Insolvency Proceeding sequestrator (or an order shall be made by a competent court or a resolution shall be passed other similar official) for the winding-up or dissolution of the Manager or a petition shall be presented tofor any substantial part of its properties, or an ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order shall be made by, unstayed and in effect for a competent court for period of 60 consecutive days;
(g) the appointment of an administrator of commencement by the Manager or shall commence an of a voluntary case under any applicable Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, findingLaw, or orderother similar law now or hereafter in effect, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed consent by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability appointment of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A or taking possession by a receiver, administrator liquidator, assignee, custodian, trustee or sequestrator (or other similar official shall be appointed in relation to official) of the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of its properties, or the Manager’s assets and making by the Manager of any general assignment for the benefit of creditors, or the failure by the Manager generally to pay its debts as they become due, or the taking of any action by the Manager in furtherance of any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty such action;
(60h) days.
9.1.9 The Manager UCI shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,00020,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business DaysIndebtedness; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument instrument, and provided further that any such event or condition the holder thereof shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), have accelerated the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, caused such Indebtedness to mature provided that mature; or any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled prepayment) or redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the foregoing stated maturity thereof;
(i) A Change of Control shall not constitute occur;
(j) For any calendar month the Average Rental Rate for the UCI Compressors exceeds the Average Rental Rate for the Owner Compressors by more than ten percentage points;
(k) For any calendar month the Monthly Utilization Rate for the UCI Compressors exceeds the Monthly Utilization Rate for the Owner Compressors by more than ten percentage points;
(l) As of any Determination Date, the Run-time Credit Ratio exceeds five percent (5%); or
(m) UCH shall repudiate the Management Guaranty or the Management Guaranty shall fail to be in full force and effect.
12.2 If a Manager Default in respect of defaults existing on shall have occurred and be continuing and the 2006 Closing Date under Notes from any Series are then outstanding, the Manager’s public indentures in respect Indenture Trustee (acting at the written direction of the Manager’s 10¾% Senior Notes Due 2006Requisite Global Majority), 7 7/8% Senior Notes Due 2008in Requisite Global Majority's discretion, 12½% Senior Notes Due 2009 shall have the right, in addition to any other rights or remedies that Owner or its assignee may have under any applicable law or in equity to: (i) terminate this Agreement, (ii) appoint the Back-up Manager or another Replacement Manager to manage the Owner Compressors, (iii) arrange new User Leases for such Owner Compressors and 10½% Senior Notes Due 2012 (iv) exercise such other remedies available under this Agreement, the Head Lessee Security Agreement, the Indenture and listed on Schedule 9.1.9 hereto so long as neither the trustee nor other Related Documents. The Owner shall give notice to the noteholders Rating Agencies of any such notes has Manager Default. Notwithstanding anything contained herein to the contrary, this Agreement shall continue in full force and effect with respect to a Compressor, and Manager shall continue to manage such Owner Compressors pursuant to the terms and conditions of this Agreement, until the date on which a Replacement Manager assumes responsibility for managing such Compressor.
12.3 Upon the appointment of the Back-Up Manager or have initiated an another Replacement Manager, Manager shall cooperate with Owner or its assignee, the Indenture Trustee, the Deal Agent and each Series Enhancer in transferring to the Back-up Manager or another Replacement Manager the management of the Owner Compressors, including, but not limited to making available all books and records (including data contained in Manager's computer systems that relate to Owner Compressors) pertaining to such Owner Compressors, providing access to, and cooperating in the transfer of, information pertaining to such Owner Compressors from Manager's computer system to Back-up Manager's or its designee's system, and taking any other action as may be reasonably requested by Owner or its assignee to enforce payment ensure the orderly assumption of management of such Owner Compressors by the Back-up Manager or another Replacement Manager. Notwithstanding the foregoing, in no event shall Manager be required to, and the Deal Agent shall not, deliver or disclose to any Replacement Manager any information, data, document or agreement which is proprietary to Manager.
12.4 In no event shall Manager be required to act in any manner inconsistent with the rights of any such notes unless, within 14 days after User under any User Lease to which an Owner Compressor is then subject.
12.5 Termination of this Agreement shall be without prejudice to the Manager has received written notice rights and obligations of the commencement parties which have accrued prior to such termination; provided, however, that any amount then due to Manager shall be reduced by the reasonable and necessary out-of-pocket costs incurred by Owner (excluding Management Fees and any other costs incurred within the ordinary scope of such action(s), management and operation of the Manager initiates a voluntary filing Owner Compressors that are no longer subject to this Agreement) in connection with the removal and replacement of Manager under Chapter 11 as manager of the United States Bankruptcy Code.
9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts Owner Compressors that are no longer subject to assign its interest under this Agreement.
9.1.11 12.6 The Manager sells, conveys, transfers or assigns all, or substantially all, Owner shall give notice to the Rating Agencies in the event of its assets to any Person other than another member a termination of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager DefaultManager.
Appears in 1 contract
Sources: Management Agreement (BRL Universal Equipment Corp)
Manager Default. Each of the following is a Manager Default:
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within five (5) Business Days after the date such deposit is due or (B) deliver when within five (5) Business Days after the due date thereof any Asset Base Certificate or Manager Report; provided, that if such Container Revenues, Sales Proceeds, Casualty Proceeds or other amounts are on deposit in the Concentration Account (or a related post office box or lockbox), failure of the bank holding the Concentration Account to comply with the Indenture Trustee instructions of the Manager (or to comply with the terms of any intercreditor agreement) shall not constitute a Manager Report and such failure is not cured within seven (7) daysDefault.
9.1.2 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof any other Transaction Document and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights interests of the Noteholders, Noteholders or (if it is the Lead Arrangers, the Indenture Trustee or the Administrative Agent Control Party for any Series of Outstanding Notes) any Series Enhancer and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure and (ii) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder Noteholder, the Administrative Agent, any Series Enhancer or either Lead Arrangerany other Person.
9.1.3 Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto proves to have been untrue in any material respect when made.
9.1.4 There shall be a Change of Control , such breach materially and adversely affects the interests of the Manager provided that Noteholders or (if it is the Control Party for any Series of Outstanding Notes) any Series Enhancer and such breach, if capable of remedy, shall continue unremedied for a Change period of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which thirty (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Default.
9.1.5 SCL ceases to carry on the whole, or substantially the whole, of its container business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented to, or an order shall be made by, a competent court for the appointment of an administrator of the Manager or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (6030) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect date on the ability of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder, the Administrative Agent, any Series Enhancer or any other Person.
9.1.4 TAL ceases to be engaged in the container leasing business.
9.1.5 The Manager shall commence a voluntary case concerning itself under the Bankruptcy Code; or an involuntary case is commenced against the Manager or any of its Subsidiaries and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the commencement case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of such action(s), the property of the Manager; or the Manager initiates commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager any such proceeding which remains undismissed for a voluntary filing period of 60 days; or the Manager under Chapter 11 is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or the Manager makes a general assignment for the benefit of creditors; or any action is taken by a the Manager for the purpose of effecting any of the United States Bankruptcy Code.foregoing;
9.1.10 9.1.6 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 The Manager sells, conveys, transfers or assigns all, or substantially all, 9.1.7 A Change of its assets Control shall have occurred with respect to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager DefaultContainer Holdings.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each of the following is a Manager Default:
9.1.1 The Manager shall fail to (A) make when due any deposits of Collections, Master Lease Payment, payments received under the Equipment Management AgreementContainer Revenues, Sales Proceeds, Container Revenues Casualty Proceeds or any other amounts due and payable under this Agreement to the Trust Account within one (1) Business Day after the date such deposit is due; provided, that if such failure to make a deposit shall result from administrative failure beyond the control of the Manager, the Manager shall have two (2) additional Business Days to cure such failure before such failure shall constitute a Manager Default.
9.1.2 The Manager shall fail (A) to deliver any report required to be delivered to the Indenture Trustee pursuant to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue unremedied for three (3) Business Days or (B) in any material respect to perform the covenant of the Manager to deliver when due to financial statements set forth in the Indenture Trustee any Manager Report second sentence of Section 4.1.1 and such failure shall continue unremedied for thirty (30) days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent, any Series Enhancer or any Noteholder, a written notice specifying such default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Manager shall have knowledge of such default or breach; provided, however, that (x) if the reason for such failure is primarily attributable to changes in accounting principles or interpretations or the application of the same, (y) such changes are not cured within seven related to the assets of the Issuer and (7z) days.no Manager Default then exists under clauses (9) through (12) below, then such failure shall not constitute a Manager Default under this Section 9.1.2 unless such failure materially and adversely affects the interests of any Noteholder or any Series Enhancer (if such Series Enhancer is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment pursuant to its Enhancement Agreement);
9.1.2 9.1.3 The Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions terms hereof or of any other Transaction Document (which is not otherwise addressed in Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof 9.1.2) and such failure shall continue unremedied for fifteen thirty (1530) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein or in any other Transaction Document (including in its capacity as Seller) (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights interests of the NoteholdersNoteholders or (if it is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment pursuant to its Enhancement Agreement) any Series Enhancer, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure failure, if capable of remedy, shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date (x) on which an officer of there has been given to the Manager has actual knowledge of such failure and (ii) Manager, by the date on which Indenture Trustee, the Manager has received Transition Agent, any Series Enhancer or any Noteholder, a written notice specifying such failure from default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the Owner, the Indenture Trustee, any Noteholder Manager shall have knowledge of such default or either Lead Arrangerbreach.
9.1.3 9.1.4 Any representation or warranty made by the Manager in this AgreementAgreement or any other Transaction Document (including in its capacity as Seller), or in any certificate, report or financial statement delivered by it pursuant hereto or thereto proves to have been untrue in any material respect when made.
9.1.4 There , such breach materially and adversely affects the interests of the Noteholders or (if it is then the Control Party for a Series of Outstanding Notes or shall have made an unreimbursed payment pursuant to its Enhancement Agreement) any Series Enhancer, and such breach, if capable of remedy, shall continue unremedied for a period of thirty (30) days after the earlier of the date (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent, any Series Enhancer or any Noteholder, a written notice specifying such default or breach and requiring it to be a Change of Control remedied and (y) on which any Authorized Officer of the Manager provided that a Change shall have knowledge of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Defaultsuch default or breach.
9.1.5 SCL TAL ceases to carry on be engaged in the whole, container leasing or substantially the whole, of its container management business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding commence a voluntary case concerning itself under the Bankruptcy Code; or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of involuntary case is commenced against the Manager or a any of its Subsidiaries and the petition shall be presented tois not controverted within 10 days, or an is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Manager; or the Manager commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Manager and such proceeding remains undismissed for a period of 60 days; or the Manager is adjudicated insolvent or bankrupt; or any order shall be made by, of relief or other order approving any such case or proceeding is entered; or the Manager suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a competent court period of 60 days; or the Manager makes a general assignment for the appointment benefit of an administrator of the Manager creditors; or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed action is taken by the Manager to for the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability purpose of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in effecting any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.foregoing;
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 9.1.7 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.8 A Change of Control shall have occurred with respect to the Manager.
9.1.9 The Leverage Ratio of TAL International Group as of the last day of any fiscal quarter shall be in excess of 4.75 to 1.00.
9.1.10 As of the last day of each fiscal quarter beginning with the fiscal quarter ending September 30, 2010, the Consolidated EBIT to Consolidated Cash Interest Expense Ratio is less than 1.10 to 1.00.
9.1.11 As of the last day of each fiscal quarter beginning with the fiscal quarter ending September 30, 2010, the Consolidated Tangible Net Worth of TAL International Group is less than the sum of (i) $321,351,326; plus (ii) an amount equal to fifty percent (50%) of the cumulative sum of the aggregate net income of TAL International Group and its Consolidated Subsidiaries (as such term is defined in the Credit Agreement) on a consolidated basis, determined in accordance with GAAP for the period commencing on January 1, 2006 and terminating on such date of determination.
9.1.12 Any of the Manager, TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or any Restricted Subsidiary (as such term is defined in the Credit Agreement) fails to make any payment when due (beyond the applicable grace or cure period with respect thereto, if any) or defaults in the observance or performance (beyond the applicable grace or cure period with respect thereto, if any) of any payment obligation, or any other agreement or covenant with respect to the Indebtedness that, individually or in the aggregate for all such Persons, exceeds Twenty Million Dollars ($20,000,000) and, such condition is not remedied by a permanent and unconditional cure or waiver of such default within thirty (30) days.
9.1.13 One or more judgments or decrees shall be entered against TAL International Group, the Borrower (as such term is defined in the Credit Agreement) or any of its Restricted Subsidiaries (as such term is defined in the Credit Agreement) (other than a Special Purpose Vehicle (as such term is defined in the Credit Agreement)) involving a liability (to the extent not paid when due or covered by a reputable and solvent insurance company (with any portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in excess of Twenty Million Dollars ($20,000,000) for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days.
9.1.14 This Agreement shall at any time cease to be the legal, valid and binding obligation of the Manager, enforceable in accordance with its terms.
9.1.15 The Manager sellsshall fail to deliver to the Transition Agent the Back-up Data File in accordance with Section 3.10.3 hereof, conveysand such failure, transfers or assigns allif capable of remedy, or substantially all, shall continue unremedied for a period of its assets to any Person other than another member three (3) days after earlier of the SCL Groupdate (x) on which there has been given to the Manager, by the Indenture Trustee, the Transition Agent, any Series Enhancer or another member any Noteholder, a written notice specifying such default or breach and requiring it to be remedied and (y) on which any Authorized Officer of the SCL Group sells, conveys, transfers Manager shall have knowledge of such default or assigns all, or substantially all, breach. The occurrence of a Manager Default shall constitute an “Actionable Default” under the assets of the SCL Group, in each case whether in a single transaction or series of transactionsIntercreditor Agreement for so long as Manager Default is continuing. A Manager Default may be waived in a written instrument executed by the Control Party Requisite Global Majority in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party Requisite Global Majority or any of its assigns, shall constitute any such waiver or prejudice the Requisite Global Majority in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.
Appears in 1 contract
Sources: Management Agreement (TAL International Group, Inc.)
Manager Default. Each Any of the following is events or conditions shall constitute a Manager Default:
9.1.1 The : Manager shall fail to (Ai) make when any deposit to the Trust Account within [one (1)] Business Day after such deposit becomes due any deposits of Collectionshereunder, Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (Bii) deliver when due to the Indenture Trustee any a Manager Report and such failure is not cured or an Asset Base Certificate within seven [three (7) days.
9.1.2 The 3)] Business Days after the due date thereof; Manager shall fail to (A) deliver any report required to be delivered to the Indenture Trustee pursuant to the provisions Section 7 hereof, other than delivery of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 a Manager Report or 4.1.6 hereof and such failure shall continue unremedied for fifteen (15) daysan Asset Base Certificate, or (B) shall fail to perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1)herein, which failure materially and adversely affects affect the rights of the NoteholdersOwner, the Lead Arrangersany Noteholder, the Indenture Trustee or Trustee, the Administrative Agent or any Series Enhancer, and such failure shall continue unremedied for a period of fifteen thirty (1530) days after the earlier to occur of (i) the date on which an officer of the Manager has actual knowledge of such failure thereof and (ii) the date on which the Manager has received written receives notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder or either Lead Arranger.
9.1.3 thereof. Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto hereto, proves to have been untrue in any material respect when made.
9.1.4 There shall be a Change of Control , which breach materially and adversely affects the interests of the Manager provided that Owner, any Noteholder or any Series Enhancer, and such breach shall continue unremedied for a Change period of Control occasioned by thirty (30) days after the implementation earlier to occur of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (Ai) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control an officer of Manager to existing equityholders of has actual knowledge thereof and (ii) Manager receives notice thereof. Manager shall not constitute a Manager Default.
9.1.5 SCL ceases cease to carry on the whole, whole or substantially the whole, whole of its container business.
9.1.6 The Compressor management business (except for an amalgamation, merger, reorganization or other similar arrangement not involving or arising out of the insolvency of Manager). Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented to, or an order shall be made by, a competent court for the appointment of an administrator of the Manager or shall commence an Insolvency Proceeding Manager, and, in the case of an involuntary Insolvency Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition. Manager shall suspend payment of its debts generally or shall be unable to, provided that in the case of any voluntary commencement of or shall admit inability to, pay its debts as they fall due, or shall commence an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 Proceeding. A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s 's assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The . Manager shall fail to pay any principal amounts due under, or suffer to exist an event of default with respect to the terms of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually for borrowed money which singularly or in the aggregate, when the same becomes aggregate exceeds____________ and such failure or event of default caused such Indebtedness to be declared due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), prior to the date on which it would otherwise have been due and such failure payable. Any of the following shall continue after occur: [TBD]. A Change of Control shall have occurred. Average Equipment Availability [to be developed] falls and remains below __%. Utilization Ratio [to be developed] falls and remains lower than the applicable grace period, if any, specified Utilization Ratio of similar Compressors in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 The Manager sells, conveys, transfers or assigns all, or substantially all, of its assets to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactionsCombined Fleet. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of If a Manager Default shall have occurred and be continuing and the Notes from any Series are then outstanding, the Indenture Trustee (acting at the written direction of the Requisite Global Majority), in Requisite Global Majority’s discretion, shall have the right, in addition to any other rights or remedies that Owner or its assignee may have under any applicable law or in equity to: (i) terminate this Agreement, (ii) appoint a Replacement Manager to manage the Compressors, (iii) take possession of and sell or dispose of all or any Compressors which are not be construed then subject to a Lease, (iv) arrange new Leases for such Compressors and (v) exercise such other remedies available under this Agreement and the Indenture and take any other such action as a waiver Owner deems appropriate under the circumstances, including assigning this Agreement to another Person. The Owner shall give notice to the Rating Agencies of any subsequent such Manager Default. No delay Notwithstanding anything contained herein to the contrary, this Agreement shall continue in full force and effect with respect to a Compressor, and Manager shall continue to manage such Compressor pursuant to the terms and conditions of this Agreement, until the date on which a Replacement Manager assumes responsibility for managing such Compressor. Upon the appointment of a Replacement Manager, Manager shall cooperate with Owner or its assignee, the Indenture Trustee, the Administrative Agent and each Series Enhancer in transferring to such Replacement Manager the management of the Compressors, including, but not limited to making available all books and records (including data contained in Manager's computer systems) pertaining to such Compressors, providing access to, and cooperating in the transfer of, information pertaining to such Compressors from Manager's computer system to Owner's or its designee's system, and taking any other action as may be reasonably requested by Owner or its assignee to ensure the orderly assumption of management of such Compressors by such Replacement Manager. Notwithstanding the foregoing, in no event shall Manager be required to, and the Administrative Agent shall not, deliver or disclose to any Replacement Manager any information, data, document or agreement which is proprietary to Manager. In no event shall Manager be required to act in any manner inconsistent with the rights of Lessees under the Leases. Termination of this Agreement shall be without prejudice to the rights and obligations of the parties which have accrued prior to such termination; provided, however, that any amount then due to Manager shall be reduced by the Control Party or reasonable and necessary out-of-pocket costs incurred by Owner (excluding management fees and any other costs incurred within the ordinary scope of its assigns, management and operation of the Compressors that are no longer subject to this Agreement) in exercising any right, power or privilege arising out connection with the removal and replacement of such Manager Default as manager of the Compressors that are no longer subject to this Agreement. The Owner shall operate as give notice to the Rating Agencies in the event of a waiver termination of such Manager Defaultthe Manager.
Appears in 1 contract
Sources: Management Agreement
Manager Default. Each The occurrence of any of the following is events constitutes a Manager DefaultDefault for the purposes of clause 20.1(b) of the Master Trust Deed:
9.1.1 The (a) (Manager shall fail does not instruct): the Manager does not instruct the Trustee to (A) make when due any deposits of Collections, Master Lease Payment, payments received under pay the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other required amounts due and payable under this Agreement or (B) deliver when due to the Indenture Trustee any Manager Report Securityholders of the Series Trust within the time periods specified in this Deed and such failure is not cured remedied within seven 10 Business Days (7or such longer period as the Trustee may agree) days.of notice of such failure being delivered to the Manager by the Trustee;
9.1.2 The (b) (Manager shall fail does not prepare Quarterly Certificates): the Manager does not prepare and transmit to (A) deliver the Trustee the Quarterly Certificates or any report other reports required to be delivered pursuant to prepared by the provisions of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof Manager and such failure shall continue unremedied for fifteen (15) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects remedied within 10 Business Days (or such longer period as the rights Trustee may agree) of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure shall continue unremedied for a period of fifteen (15) days after the earlier notice being delivered to occur of (i) the date on which an officer of the Manager has actual knowledge of such by the Trustee. Such a failure and (ii) the date on which the Manager has received written notice specifying such failure from the Owner, the Indenture Trustee, any Noteholder or either Lead Arranger.
9.1.3 Any representation or warranty made by the Manager in this Agreement, or in any certificate, report or financial statement delivered by it pursuant hereto proves to have been untrue in any material respect when made.
9.1.4 There shall be a Change of Control of the Manager provided that a Change of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity is issued to satisfy the Manager’s pension liabilities, and/or (C) there is a transfer of voting control of Manager to existing equityholders of Manager shall not constitute a Manager Default.
9.1.5 SCL ceases to carry on the whole, or substantially the whole, of its container business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented to, or an order shall be made by, a competent court for the appointment of an administrator of the Manager or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager or a distress, execution or other process shall be levied or enforced upon or out against, or any encumbrancer shall take possession of, the whole or a substantial part of the Manager’s assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall does not constitute a Manager Default in respect if it is as a result of defaults existing on a Servicer Default pursuant to clause 18.1(b) provided that, if the 2006 Closing Date under Servicer subsequently provides the information to the Manager’s public indentures in respect , the Manager prepares and submits to the Trustee the outstanding Quarterly Certificates or other reports within 10 Business Days (or such longer period as the Trustee may agree to) of receipt of the required information from the Servicer;
(c) (Breach of a Representation or Warranty): any representation, warranty, certification or statement made by the Manager (in its capacity as Manager’s 10¾% Senior Notes Due 2006) in a Transaction Document to which it is expressed to be a party, 7 7/8% Senior Notes Due 2008or in any document provided by it under or in connection with a Transaction Document, 12½% Senior Notes Due 2009 proves to have been incorrect when made, or is incorrect when repeated, in a manner which as reasonably determined by the Trustee has an Adverse Effect and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor Manager does not remedy the noteholders same to the Trustee's reasonable satisfaction within 60 Business Days after receipt by the Manager of any such notes has or have initiated an action notice in writing from the Trustee requiring it to enforce payment do so; or
(d) (Breach of any such notes unless, within 14 days after other obligations): the Manager has breached its other obligations as Manager under a Transaction Document to which it is expressed to be a party or any other deed, agreement or arrangement entered into by the Manager in relation to the Series Trust or the Securities, (other than an obligation which depends upon information provided by, or action taken by, the Servicer and the Manager has not received written the information, or the action has not been taken, which is necessary for the Manager to perform the obligation) and such breach has had or, if continued, will have an Adverse Effect as reasonably determined by the Trustee, and either such breach is not remedied so that it no longer has or will have such an Adverse Effect within 20 Business Days of notice thereof delivered to the Manager by the Trustee or the Manager has not within 20 Business Days of the commencement receipt of such action(snotice paid compensation to the Trustee for its loss from such breach in an amount satisfactory to the Trustee (acting reasonably). The Trustee must, in such notice, specify the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 The Manager sells, conveys, transfers or assigns allreasons why it believes an Adverse Effect has occurred, or substantially allwill occur, of its assets to any Person other than another member of as the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactionsmay be. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.--------------------------------------------------------------------------------
Appears in 1 contract
Sources: Series Supplement (Securitisation Advisory Services Pty LTD)
Manager Default. Each 11.1 The existence of any of the following is events or conditions beyond any applicable grace and/or cure period shall constitute a Manager Default:
9.1.1 The (a) Manager shall fail to (Ai) make when any deposit to the Trust Account within three (3) Business Days after the due any deposits of Collectionsdate thereof, Master Lease Payment, payments received under the Equipment Management Agreement, Sales Proceeds, Container Revenues or any other amounts due and payable under this Agreement or (Bii) deliver when due to the Indenture Trustee any a Manager Report and such failure is not cured or an Asset Base Certificate within seven three (73) days.
9.1.2 The Manager shall fail to Business Days after the due date thereof or (Aiii) deliver any report required to be delivered pursuant to the provisions of Section 4.1.1, 4.1.3, 4.1.4, 4.1.5 or 4.1.6 hereof and such failure shall continue unremedied for fifteen (15) days, or (B) perform or observe, or cause to be performed or observed, in any material respect any other covenant or agreement contained herein (which is not otherwise addressed in this Section 9.1), which failure materially and adversely affects the rights of the Noteholders, the Lead Arrangers, the Indenture Trustee or the Administrative Agent and such failure shall continue unremedied for a period of financial statements set forth in Section 7.12 hereof within fifteen (15) days after the required timeframes specified therein;
(b) Manager shall fail to carry and maintain (or cause to be carried and maintained) liability insurance and, to the extent such insurance is available on commercially reasonable terms, physical loss and damage insurance with respect to the Managed Containers in accordance with the requirements of Section 9 hereof for a period of more than thirty (30) days from the earlier to occur of (iA) the date on which an officer of the Manager has obtaining actual knowledge of such failure and (iiB) the date on which the Manager has received receipt of written notice specifying by an officer of Manager of such failure from failure;
(c) Manager shall consent to the Ownerappointment of or taking possession of all or a substantial part of its property by a receiver, encumbrancer, liquidator or similar official, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment for the Indenture Trusteebenefit of, or a composition with, all or some of its creditors, or shall voluntarily commence any Noteholder proceeding seeking liquidation, reorganisation or either Lead Arranger.other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law, or being unable to pay its debts as they fall due shall commence negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness;
9.1.3 Any representation (d) any covenant (to the extent not otherwise addressed in this Section 11), agreement or warranty statement made by the Manager in this Agreement, Agreement or in any certificatenotice or other document, report certificate or financial statement delivered by it pursuant hereto proves to (including any Manager Report or Asset Base Certificate) or in connection herewith or therewith the breach or non-performance of which is reasonably likely have a material and adverse effect on the Borrower, Agent or any Lender and (where capable of remedy) such defect has not been untrue in any material respect when made.
9.1.4 There shall be a Change of Control remedied within 30 days of the Manager provided that a Change earlier to occur of Control occasioned by the implementation of a restructuring otherwise satisfactory to the Lead Arrangers, pursuant to which (A) the indebtedness under Manager’s public indentures in respect an officer of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 Manager obtaining actual knowledge of such failure and 10½% Senior Notes Due 2012 are converted to equity interests in the Manager, (B) equity receipt of written notice by Manager of such failure;
(e) any representation or warranty made by Manager in this Agreement or in any notice or other document, certificate or statement delivered by it pursuant hereto (including any Manager Report or Asset Base Certificate) or in connection herewith or therewith the breach or non-performance of which is issued reasonably E23 likely to satisfy have a material and adverse effect on the Manager’s pension liabilitiesBorrower, and/or Agent or any Lender and (Cwhere capable of remedy) there is a transfer such defect has not been remedied within 30 days of voting control the earlier to occur of (A) an officer of Manager to existing equityholders obtaining actual knowledge of such failure and (B) receipt of written notice by Manager of such failure;
(f) a receiver, receiver and manager, liquidator, provisional liquidator, administrator or other similar person shall be appointed for Manager or a substantial part of its assets or any resolution of the directors or shareholders of Manager shall not constitute a Manager Default.
9.1.5 SCL ceases to carry on the whole, or substantially the whole, of its container business.
9.1.6 The Manager shall be adjudicated or found bankrupt or insolvent by any competent court in an Insolvency Proceeding or an order shall be made by a competent court or a resolution shall be passed for the winding-up or dissolution of the Manager or a petition shall be presented tolodged for the purpose of such appointment which shall not be revoked or set aside within 60 days of being passed or lodged;
(g) Manager shall be insolvent or unable to pay its debts when they fall due, or an order Manager shall be made bystop, a competent court for the appointment suspend or threaten to stop or suspend payment of an administrator of the Manager or shall commence an Insolvency Proceeding and, in the case of an involuntary Proceeding, such adjudication, finding, order or petition shall not have been stayed, vacated or dismissed within sixty (60) days after the making of such adjudication, finding, or order, or the presentation of such petition, provided that in the case of any voluntary commencement of an Insolvency Proceeding by the Manager, such commencement shall not constitute an event of default so long as the Manager continues to timely perform, or arranges for substitute timely performance of those obligations (if any) reasonably acceptable to the Lead Arrangers that either are (a) imposed upon the Manager under the Transaction Documents, or (b) payment or performance obligations owed by the Manager to the Issuer and the Manager’s failure to honor such obligations would not have an adverse effect on the ability of the Issuer to perform its material obligations under the Transaction Documents.
9.1.7 [Reserved].
9.1.8 A receiver, administrator or other similar official shall be appointed in relation to the Manager all or a material part of its debts or a moratorium is agreed or declared in respect of or affecting all or a material part of (or a particular type of) Manager's debts;
(h) a distress, attachment, execution or other legal process shall be levied or enforced upon against the assets of Manager that has a material adverse effect on the Borrower, Agent or out againstNoteholders, such determination to be made in the sole discretion of the Noteholders, which shall not be revoked or set aside within 60 days of being passed or lodged;
(i) a person entitled to the benefit of any encumbrancer mortgage, charge or other encumbrance shall take possession of, the whole of all or a substantial material part of the Manager’s assets and in any of the foregoing cases it shall not be discharged, dismissed, vacated, stayed or bonded within sixty (60) days.
9.1.9 The Manager shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal or notional amount of at least $3,000,000, either individually or in the aggregate, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness and provided further that such payment default shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed five (5) Business Days or (ii) waivers or forbearances which in the aggregate exceed five (5) Business Days; or any other event (i.e., not involving a payment default) shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument and provided further that any such event or condition shall be determined without giving effect to any temporary (i) extensions of applicable grace periods which in aggregate exceed forty-five (45) days or (ii) waivers or forbearances which in aggregate exceed forty-five (45) days, if the effect of such event or condition is to accelerate, or to permit the acceleration of (regardless of whether such amounts are actually accelerated), the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature provided that the foregoing shall not constitute a Manager Default in respect of defaults existing on the 2006 Closing Date under the Manager’s public indentures in respect of the Manager’s 10¾% Senior Notes Due 2006, 7 7/8% Senior Notes Due 2008, 12½% Senior Notes Due 2009 and 10½% Senior Notes Due 2012 and listed on Schedule 9.1.9 hereto so long as neither the trustee nor the noteholders of any such notes has or have initiated an action to enforce payment of any such notes unless, within 14 days after the Manager has received written notice of the commencement of such action(s), the Manager initiates a voluntary filing of Manager under Chapter 11 of the United States Bankruptcy Code.
9.1.10 Except as permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign its interest under this Agreement.
9.1.11 The Manager sells, conveys, transfers or assigns all, or substantially all, of its assets to any Person other than another member of the SCL Group, or another member of the SCL Group sells, conveys, transfers or assigns all, or substantially all, of the assets of the SCL Group, in each case whether in a single transaction or series of transactions. A Manager Default may be waived in a written instrument executed by the Control Party in each such instance. Any such waiver of a Manager Default shall not be construed as a waiver of any subsequent Manager Default. No delay by the Control Party or any of its assigns, in exercising any right, power or privilege arising out of such Manager Default shall operate as a waiver of such Manager Default.Manager;
Appears in 1 contract
Sources: Management Agreement (Cronos Group)