Manager Default. An event of default shall exist under this Agreement if: (i) Manager neglects or fails to pay any installment of Owner’s Share of Ancillary Event Net Profit, Monthly Ticket Tax Payment and any other charge under this Agreement within ten (10) days after notice of default (but Owner is not required to give more than two such default notices during any one Agreement Year); or (ii) Manager neglects or fails to perform or observe any of the other covenants, terms, provisions or conditions on its part to be performed or observed under this Agreement, within thirty (30) days after notice of default (or if more than thirty (30) days shall be reasonably required because of the nature of the default, if Manager fails to commence to cure such default within the 30 days and thereafter proceed diligently to cure such default after such notice); or (iii) Manager fails to perform or observe any obligations pursuant to Manager's Operating Covenant hereunder; or (iv) upon the occurrence of any default under a Related Agreement or the Guaranty or any guaranty of a Related Agreement that remains uncured after the expiration of the applicable cure period thereunder; or (v) Manager (a) admits in writing its inability to pay its debts generally as they become due; (b) commences any case, proceeding or other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any federal, state or local law relating to bankruptcy, insolvency, reorganization or relief of debtors; (c) makes an assignment for the benefit of its creditors; (d) is generally unable to pay its debts as they mature; (e) seeks or consents to the appointment of a receiver of itself or of the whole or any substantial part of its property; or (f) files a petition or answer seeking reorganization or arrangement under an order or decree appointing, without the consent of Manager, a receiver of Manager of the whole or substantially all of its property, and such case, proceeding or other action is not dismissed within one hundred twenty (120) days after the commencement thereof; or (vi) the estate or interest of Manager in the Premises or any part thereof is levied upon or attached in any proceeding and the same is not vacated or discharged within the later of ninety (90) days after commencement thereof or thirty
Appears in 1 contract
Sources: Management Agreement
Manager Default. An event of default shall exist under this Agreement if:
(i) Manager neglects or fails to pay any installment of Owner’s Share of Ancillary Event Net ProfitFunds, Owner’s Share of Ticket Sales, Monthly Ticket Tax Payment and any other charge under this Agreement within ten (10) days after notice of default (but Owner is not required to give more than two such default notices during any one Agreement Year); or
(ii) Manager neglects or fails to perform or observe any of the other covenants, terms, provisions or conditions on its part to be performed or observed under this Agreement, within thirty (30) days after notice of default (or if more than thirty (30) days shall be reasonably required because of the nature of the default, if Manager fails to commence to cure such default within the 30 days and thereafter proceed diligently to cure such default after such notice); or
(iii) Manager fails to perform or observe any obligations pursuant to Manager's Operating Covenant hereunder; or
(iv) upon the occurrence of any default under a Related Agreement or the Guaranty or any guaranty of a Related Agreement that remains uncured after the expiration of the applicable cure period thereunder; or
(v) Manager (a) admits in writing its inability to pay its debts generally as they become due; (b) commences any case, proceeding or other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any federal, state or local law relating to bankruptcy, insolvency, reorganization or relief of debtors; (c) makes an assignment for the benefit of its creditors; (d) is generally unable to pay its debts as they mature; (e) seeks or consents to the appointment of a receiver of itself or of the whole or any substantial part of its property; or (f) files a petition or answer seeking reorganization or arrangement under an order or decree appointing, without the consent of Manager, a receiver of Manager of the whole or substantially all of its property, and such case, proceeding or other action is not dismissed within one hundred twenty (120) days after the commencement thereof; or
(vi) the estate or interest of Manager in the Premises or any part thereof is levied upon or attached in any proceeding and the same is not vacated or discharged within the later of ninety (90) days after commencement thereof or thirty
Appears in 1 contract
Sources: Management Agreement
Manager Default. An event 11.1 The existence of default any of the following events or conditions beyond any applicable grace and/or cure period shall exist under this Agreement ifconstitute a Manager Default:
(a) Manager shall fail to (i) make any deposit to the Trust Account within three (3) Business Days after the due date thereof, or (ii) deliver a Manager neglects Report or fails to pay an Asset Base Certificate within three (3) Business Days after the due date thereof or (iii) deliver any installment of Owner’s Share of Ancillary Event Net Profit, Monthly Ticket Tax Payment and any other charge under this Agreement the financial statements set forth in Section 7.12 hereof within ten (10) days after notice of default (but Owner is not the required to give more than two such default notices during any one Agreement Year); ortimeframes specified therein;
(iib) Manager neglects shall fail to carry and maintain (or fails cause to perform or observe any of be carried and maintained) liability insurance and, to the other covenants, extent such insurance is available on commercially reasonable terms, provisions or conditions on its part physical loss and damage insurance with respect to be performed or observed under this Agreement, within thirty (30) days after notice the Managed Containers in accordance with the requirements of default (or if Section 9 hereof for a period of more than thirty (30) days shall be reasonably required because from the earlier to occur of the nature (A) an officer of the default, if Manager fails to commence to cure obtaining actual knowledge of such default within the 30 days failure and thereafter proceed diligently to cure (B) receipt of written notice by an officer of Manager of such default after such notice); orfailure;
(iiic) Manager fails shall consent to perform the appointment of or observe any obligations pursuant to Manager's Operating Covenant hereunder; or
(iv) upon the occurrence taking possession of any default under all or a Related Agreement substantial part of its property by a receiver, encumbrancer, liquidator or the Guaranty similar official, or any guaranty of a Related Agreement that remains uncured after the expiration of the applicable cure period thereunder; or
(v) Manager (a) admits shall admit in writing its inability to pay its debts generally as they become due; (b) commences , or shall make a general assignment for the benefit of, or a composition with, all or some of its creditors, or shall voluntarily commence any caseproceeding seeking liquidation, proceeding reorganisation or other action seeking relief with respect to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it itself or its debts under any federal, state or local law relating to bankruptcy, insolvencyinsolvency or other similar law, reorganization or relief of debtors; (c) makes an assignment for the benefit of its creditors; (d) is generally being unable to pay its debts as they mature; 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;
(d) any covenant (to the extent not otherwise addressed in this Section 9), agreement or statement 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 reasonably likely have a material and adverse effect on the Borrower, Agent or Noteholders and (where capable of remedy) such defect has not been remedied within 30 days of the earlier to occur of (A) an officer of Manager obtaining actual knowledge of such failure and (B) receipt of written notice by Manager of such failure;
(e) seeks any representation or consents 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 reasonably likely to have a material and adverse effect on the appointment Borrower, Agent or Noteholders and (where capable of a receiver of itself or remedy) such defect has not been remedied within 30 days of the whole earlier to occur of (A) an officer of Manager 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 any other similar person shall be appointed for Manager or a substantial part of its property; assets or (f) files any resolution of the directors or shareholders of Manager shall be passed or a petition shall be lodged for the purpose of such appointment which shall not be revoked or answer seeking reorganization set aside within 60 days of being passed or arrangement under an order lodged;
(g) Manager shall be insolvent or decree appointingunable to pay its debts when they fall due, without or Manager shall stop, suspend or threaten to stop or suspend payment of 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 against the consent assets of Manager that has a material adverse effect on the Borrower, Agent or Noteholders, 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 mortgage, charge or other encumbrance shall take possession of all or a material part of the assets of Manager, ;
(j) the Independent Accountant of The Cronos Group shall resign or otherwise be replaced and shall not have been replaced by a receiver of Manager of the whole or substantially all of its property, and such case, proceeding or other action is not dismissed replacement independent accountant within one hundred twenty sixty (12060) days after the commencement date of resignation or replacement;
(k) judgments, which individually or in the aggregate exceed $1,000,000, are rendered against The Cronos Group, and which remain unpaid and are unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days after the entry thereof;
(l) the institution of any legal proceeding against the Manager or any Affiliate, which, if determined adversely, would in the reasonable judgment of the Agent (after consultation with counsel, including counsel for the Manager) is reasonably likely to have a material adverse effect on the ability of the Manager to perform its obligations hereunder;
(m) the return of Stefan M. Palatin in a management position with the Man▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇s Affiliates;
(n) except as permitted by Sections 13 and 21.5 hereof, Manager assigns its interest under this Agreement;
(o) the Manager or The Cronos Group 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 Two Million Dollars ($2,000,000), 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 permanent or temporary (i) extensions of applicable grace periods which in aggregate exceed sixty (60) days or (ii) waivers or forbearances which in the aggregate exceed sixty (60) days; or any other event 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 permanent or temporary (i) extensions of applicable grace periods which in aggregate exceed sixty (60) days or (ii) waivers or forbearances which in aggregate exceed sixty (60) 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; 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 stated maturity thereof;
(p) the Consolidated Tangible Net Worth of The Cronos Group (as reflected in the most recently available financial statements of The Cronos Group delivered pursuant to Section 7.12 hereof) shall be less than an amount equal to the sum of (i) Forty Million Dollars ($40,000,000) and (ii) the product of (x) fifty percent (50%) and (y) all consolidated net income (but not reduced for net losses), determined in accordance with GAAP, of The Cronos Group and its consolidated Subsidiaries for all periods commencing after December 31, 2000;
(q) a Change of Control shall occur with respect to The Cronos Group, unless all of the following conditions are satisfied after giving effect to such Change of Control: (A) The Cronos Group is the surviving entity of such sale, conveyance, contribution, transfer or lease of all, or substantially all, of its assets to any Person, (B) no Manager Default (or event or condition which with the giving of notice or the passage of time or both would become a Manager Default) would occur after giving effect to such Change of Control and (c) after giving effect to such Change of Control, The Cronos Group has a Consolidated Tangible Net Worth greater than or equal to its Consolidated Tangible Net Worth at the end of the fiscal quarter immediately preceding such Change of Control; or
(vir) the estate EBIT Ratio (measured on a consolidated basis) of The Cronos Group shall be less than 1.05:1.0, as calculated on a rolling six-quarter basis, as of the end of any fiscal quarter.
11.2 If a Manager Default shall have occurred and be continuing, the Agent (if any amounts owing pursuant to the Loan Agreement are still outstanding) or, in all other cases, the Borrower, shall have the right in its discretion, in addition to any other rights or interest remedies that it may have under any Applicable Law or in equity, (i) to immediately terminate this Agreement with respect to all Managed Containers then subject to the terms of this Agreement, (ii) subject to any right of quiet enjoyment of a Lessee under any Managed Container then on lease, to repossess the Managed Containers wherever located (at Borrower's sole cost and expense unless more than 5% of the Managed Containers are located at a single depot in which case Manager shall bear the cost and expense of the repossession of such Managed Containers that exceed 5% of the total number of Managed Containers in the Fleet), and (iii) to take any other such action as the Borrower or the Agent, as the case may be, deems appropriate under the circumstances, including assigning this Agreement to the Back-up Manager or any other Person designated by the Agent. Notwithstanding such termination pursuant to the provisions of this Section 11.2, Borrower shall continue to receive from the terminated Manager all Net Container Revenue Receipts due hereunder until such repossession is effected and the Lessees make payments with respect to the Managed Containers to the Back-up Manager.
11.3 Upon any termination of this Agreement as aforesaid, Manager shall cooperate with Borrower in transferring management of the Managed Containers to the Back-up Manager or any other Person designated by the Agent. Such cooperation shall include, without limitation, making available books and records (including computer records) pertaining to Manager's activities hereunder (including the status and location of each Managed Container), promptly notifying Lessees of the repossession of the Managed Containers by Borrower and/or the Back-up Manager, transferring funds belonging to Borrower to such accounts as are designated by Borrower and/or the Back-up Manager and taking any other action as may be reasonably requested by Borrower and/or the Back-up Manager to ensure the orderly transfer and repossession of the Managed Containers to Borrower or its designee. The Manager shall promptly remit to the Back-up Manager or such other Person as the Agent shall designate all payments received from the Lessees with respect to the Managed Containers after the Agreement Termination Date. The Manager hereby agrees to transfer to the Back-up Manager copies of its electronic records and all other records, correspondence and documents relating to the Managed Containers in the manner and at such times as the Back-up Manager shall reasonably request and do any and all other acts or things necessary or appropriate to effect the purposes of termination.
11.4 During the period commencing on the date on which the Borrower acting at the direction of the Agent have terminated this Agreement, a firm of Independent Accountants reasonably satisfactory to the Borrower, acting at the direction of the Agent, will review for each month the Manager's calculation of the Net Container Revenue Receipts. The reasonable expense of such accountants shall be for the account of the replaced Manager. Such Independent Accountants will provide a report to the Agent, each Lender, the Manager and the Borrower, coincident with the delivery of each Manager Report, as to the conformity of such calculations with the terms of the Manager Report.
11.5 Manager, irrevocably and by way of security to Borrower for the obligations of Manager herein, appoints Borrower to be its attorney-in-fact in the Premises event that Manager Default shall have occurred and be continuing (with full power to appoint substitutes and to delegate, including power to authorize the Person so appointed to make further appointments) on behalf of Manager and in its name or otherwise to execute any document, with power to date the same, and to give any notice and to do any act or thing which Manager is obliged to execute or do, under this Agreement or otherwise, and which Manager fails to do after reasonable request therefor by Borrower; and any person appointed as the substitute or delegate of Borrower shall, in connection with the exercise of the said power of attorney, be the agent of Manager. Manager hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney shall do or propose to do in the exercise or purported exercise of all or any part thereof is levied upon of the powers, authorities and discretion referred to in this paragraph.
11.6 Upon the occurrence of a Manager Default, Manager and Borrower shall take reasonable direction in accordance with this Agreement from, and fully cooperate with, Agent. The prior written consent of the Agent must be obtained in order to waive any Manager Default or attached any or all of its consequences. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
11.7 In no event shall Manager be required to act in any proceeding manner inconsistent with the rights of Lessees under any Leases related to the Managed Containers.
11.8 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 reasonable and necessary out-of-pocket costs incurred by Borrower, the Agent and the same is not vacated or discharged within Back-up Manager in connection with the later removal and replacement of ninety (90) days after commencement thereof or thirtyManager.
Appears in 1 contract
Sources: Management Agreement (Cronos Group)