Termination Events. This Agreement may be terminated prior to the Closing: (a) by the mutual written consent of Buyer and the Company; (b) by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein; (c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law; (d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period); (e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.), Membership Interest Purchase Agreement (CarGurus, Inc.)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closing------------------ following events shall constitute a Termination Event:
(a) (i) the Transferor, the Collection Agent or CompuCom shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) of this Section 7.1(a) or the covenant set forth in Section 5.1(k)) and such failure shall remain unremedied for ten (10) days, or (ii) the Collection Agent shall fail to make any payment or deposit to be made by it hereunder or under any other document delivered pursuant hereto when due or the mutual written consent of Buyer and Collection Agent shall fail to observe or perform any term, covenant or agreement on the Company;Collection Agent's part to be performed under Section 2.8(b) hereof; or
(b) any representation, warranty, certification or statement made by either Buyer of the Transferor, the Collection Agent or CompuCom in this Agreement or in any other document delivered pursuant hereto shall prove to have been incorrect in any material respect when made or deemed made (provided that any -------- such breach with respect to a Receivable shall not constitute a Termination Event hereunder if such breach shall have been cured by the Transferor pursuant to Section 2.9 or 8.4); or
(c) either of the Transferor or CompuCom shall default in the performance of any payment or undertaking (other than those covered by clause (a) above) or to be performed or observed under any other provision hereof or in the Receivables Purchase Agreement or under any other document delivered pursuant hereto or thereto; or
(d) failure of either of the Transferor or CompuCom, as initial Collection Agent, or any of their Subsidiaries to pay when due any amounts due under any agreement under which any Indebtedness greater than $10,000,000 is governed; or the Companydefault by either of the Transferor or CompuCom or any of their Subsidiaries in the performance of any term, if provision or condition contained in any agreement under which any Indebtedness greater than $10,000,000 was created or is governed, regardless of whether such event is an "event of default" or "default" under any such agreement; or any Indebtedness greater than $10,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the Closing has date of maturity thereof; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent, CompuCom or any Subsidiary of either the Transferor, the Collection Agent or CompuCom; or
(f) the Transferor shall, for any reason, fail to have a valid ownership interest in the Receivables and the Related Security and Collections with respect thereto; or
(g) either CompuCom or the Transferor shall enter into any transaction or merger whereby it is not taken place on the surviving entity; or
(h) there shall have occurred and be continuing any event or before 5:00 p.m. (Eastern time) on March 9condition which materially affects the Transferor's, 2021 (CompuCom's or the “End Date”)Collection Agent's ability to either collect the Receivables or to perform under this Agreement or the Receivables Purchase Agreement; provided, that or
(i) Buyer the Liquidity Provider or the Credit Support Provider shall not be permitted to terminate this Agreement pursuant to this Section 9.1(bhave given notice that an event of default has occurred and is continuing under its agreements with the Company; or
(j) if the failure to consummate the sale of the Purchased Units Commercial Paper issued by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units rated at least "A-2" by the End Date results from, or is caused by, a material breach Standard & Poor's and at least "P-2" by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Moody's; or
(c) (i) by Buyer the Percentage Factor exceeds the Maximum Percentage Factor unless the Transferor reduces the Net Investment on the next day, bringing the Percentage Factor to less than or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; equal to 98% or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, the Percentage Factor equals or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of exceeds 100% at any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; time or (iii) any Material Adverse Effect the Receivables Purchase Agreement shall have occurred, or terminated pursuant to Section 8.1 thereof; or
(l) the Dilution Ratio averaged for any event or other Effect shall have occurred or circumstance or other Effect shall exist that, three-month period exceeds 7%; or
(m) the Loss to Liquidation Ratio averaged for any three-month period exceeds 1.50%; or
(n) the Delinquency Ratio averaged for any three-month period exceeds 15.0%; or
(o) CompuCom's Leverage Ratio (as such term is defined in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “Exhibit N herein) exceeds (i)” ) 4.25 to 1 at the end of any fiscal quarter ending prior to and “including December 31, 2000 and (ii)” only) 3.75 to 1 at the end of any fiscal quarter thereafter; or
(p) CompuCom's Fixed Charge Coverage Ratio (as such term is defined in Exhibit N herein) falls below 1.25 to 1 at the end of any fiscal quarter; or
(q) CompuCom's Tangible Net Worth (as such term is defined in Exhibit N herein) falls below an amount equal to the sum of (i) $130,000,000, plus (ii) 75% of cumulative Net Income (as such term is defined in Exhibit N herein) for the period from, but not including March 31, 1997 through the date of calculation (but excluding from the calculation of such cumulative Net Income the effect, if an inaccuracy in any, of any fiscal quarter (or portion of a fiscal quarter not then ended) of CompuCom for which Net Income was a negative number), plus (iii) 75% of the representations and warranties of the Company, TopCo, or the Members Net Cash Proceeds (as of a date subsequent to the Agreement Date or a breach of a covenant such term is defined in Exhibit N herein) received by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) CompuCom as a result of any offering of Equity (as such inaccuracy term is defined in Exhibit N herein) or breach prior pursuant to any conversion or exchange of convertible Indebtedness (as such term is defined in Exhibit N herein) or preferred Capital Stock (as such term is defined in Exhibit N herein) or into common Capital Stock of CompuCom, plus (iv) an amount equal to the expiration net worth of any Person (as such term is defined in Exhibit N herein) that becomes a Subsidiary (as such term is defined in Exhibit N herein) of CompuCom or is merged into or consolidated with CompuCom or any Subsidiary of CompuCom or substantially all of the Member Cure Period, provided assets of which are acquired by CompuCom or any Subsidiary of CompuCom to the Company, TopCo, extent the purchase price paid therefor is paid in equity securities of CompuCom or any Subsidiary of CompuCom; or
(r) CompuCom's Asset Coverage Ratio (as such term is defined in Exhibit N herein) falls below 1.10 to 1 at the end of any fiscal quarter; or
(s) CompuCom's ratio of Funded Debt (as such term is defined in Exhibit N herein) to Capital (as such term is defined in Exhibit N herein) exceeds 0.65 to 1 at the end of any fiscal quarter; or
(t) if all or any part of the capital stock of the Transferor held (beneficially or otherwise) by CompuCom or the applicable Member, during Subordinated Note (as defined in the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(dReceivables Purchase Agreement) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as pledged or otherwise be subject to a security interest in favor of the Agreement Dateany Person, and NationsBank of Texas, N.A. or any such other Person shall have become inaccurate as of a date subsequent commence any action to the Agreement Date, foreclose on any such that the condition set forth in Section 8.1 would not be satisfied; pledge or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)security interest.
Appears in 2 contracts
Sources: Transfer and Administration Agreement (Compucom Systems Inc), Transfer and Administration Agreement (Safeguard Scientifics Inc Et Al)
Termination Events. This Agreement may If any of the following events (each a "Termination Event") shall occur and be terminated prior to the Closingcontinuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure shall remain unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer any Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (or, to the Companyextent any such representation or warranty is qualified by materiality or Material Adverse Effect, if such representation or warranty shall prove to have been incorrect in any respect, subject only to the Closing has not taken place on materiality or before 5:00 p.m. (Eastern timeMaterial Adverse Effect qualification set forth therein) on March 9, 2021 (the “End Date”)when made or deemed made; provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;or
(c) any Transaction Party shall fail to perform or observe (i) by Buyer any term, covenant or the Company if a court agreement contained in Section 5.01(a) (as to maintenance of competent jurisdiction existence only), 5.01(d) or other Governmental Authority shall have issued a final and nonappealable Order, 5.01(l)(iv) of this Agreement or shall have taken (ii) any other actionterm, having covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the effect case of permanently restrainingthis clause (ii), enjoining such failure shall remain unremedied for ten (10) days after such Transaction Party has knowledge or otherwise prohibiting receives notice thereof; or
(i) the sale Originator or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the Purchased Units as contemplated hereinsame shall become due and payable; or (ii) by Buyer if a Governmental Authority provides notice any event or condition occurs that it is seekingresults in any Material Indebtedness becoming due prior to its scheduled maturity, other than at the election of the Originator or any Subsidiary, or intends that, subject to seekany applicable grace period, enables or permits (with or without the giving of notice, the imposition lapse of an Antitrust Restraint time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided, however, that this clause (d)(ii) shall not apply to secured Indebtedness that becomes due as a condition result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Buyer shall, for any reason, fail or cease to have good marketable title to the expiration or termination Receivables and Related Security and Collections with respect thereto, free and clear of any applicable waiting period Adverse Claims (other than Adverse Claims created hereunder and under the HSR Act or other applicable Antitrust Law;Receivables Purchase Agreement); or
(dg) by any Change of Control shall occur; or
(h) there shall have occurred since the Closing Date any event or condition which has had or could reasonably be expected to have a material adverse effect on (A) the ability of the Buyer if: or the Originator to perform its obligations under the Transaction Documents or (B) the collectibility of the Receivables; or
(i) any Transaction Party receives notice or becomes aware that (i) a notice of the representations and warranties of TopCo, the Members, federal tax lien has been filed against any Transaction Party or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) a notice of lien has been filed against any Transaction Party under Section 412(n) of the covenants IRC or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the Company, TopCoIRC or Section 302(f) of ERISA applies; or
(j) one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 (except in each case to the extent covered by insurance or other right of reimbursement or indemnification), or the Members contained in this Agreement shall which have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect, shall be rendered against the Originator, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed or bonded pending appeal; then, and in any such event, the Buyer may, in its discretion, declare the Termination Date to have occurred upon notice to the Originator (in which case the Termination Date shall be deemed to have occurred); provided, however, that, in automatically upon the case occurrence of clauses “(i)” and “(ii)” only, if an inaccuracy in any Event of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) Bankruptcy with respect to any Transaction Party (without any requirement for the giving of notice), the Termination Date shall occur. Upon any such inaccuracy declaration or breach if upon such inaccuracy or breach is cured prior automatic termination, the Buyer and its assigns shall have, in addition to the expiration of rights and remedies which it may have under this Agreement, all other rights and remedies provided after default under the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations UCC and warranties contained in this Agreement under other applicable law, which rights and remedies shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)cumulative.
Appears in 2 contracts
Sources: Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc), Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Any representation, warranty, certification or statement made or deemed made by any of the mutual written consent of Buyer and Originators in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect when made or deemed made; provided that the Company;materiality threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(b) by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale Any of the Purchased Units by the End Date results from, Originators shall fail to make any payment or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, deposit required hereunder when due and such failure shall continue for one (ii1) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Business Day.
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale Any of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends Originators shall fail to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of perform any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company covenant contained in this Agreement shall be inaccurate as of the Agreement Date, Section 1.1(b) or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that4.2 when due and, in the case of clauses “a failure to perform under Section 4.2, such failure shall continue for five (i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (105) Business Days after Buyer notifies discovery thereof by the Company in writing applicable Originator.
(d) Any of the existence Originators shall fail to perform or observe any other term, covenant or agreement under any of such inaccuracy or breach the Transaction Documents and continues for thirty (30) days from the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(ddate that is the earlier of (i) as a result of such inaccuracy or breach prior notice thereof to the expiration of the Member Cure Period, provided the Company, TopCo, or applicable Originator by any Person and (ii) discovery thereof by the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);Originator.
(e) by An Event of Bankruptcy shall occur with respect to any of the Company if: Originators.
(f) (i) any of Buyer’s representations and warranties contained in this Agreement A Performance Undertaking Default shall be inaccurate as of the Agreement Dateoccur, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any the Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of Buyer’s covenants contained in this Agreement the Performance Guarantor, or (iii) the Performance Guarantor shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as repudiate its obligations thereunder.
(g) The Internal Revenue Service shall file notice of a date subsequent lien pursuant to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing Section 6323 of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Code with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior amounts in excess of $100,000 with regard to the expiration any of the Buyer Cure Period)Receivables or Related Security and such lien shall not have been released within thirty (30) days.
Appears in 2 contracts
Sources: Receivables Sale Agreement, Receivables Purchase Agreement, Performance Undertaking (Commercial Metals Co), Receivables Sale Agreement (Commercial Metals Co)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by Any Originator or Performance Guarantor shall fail to (i) make any payment or deposit required hereunder when due, or (ii) deliver any Purchase and Contribution Report when due, and, in either of the mutual written consent of Buyer and the Company;foregoing cases, such failure shall continue for two (2) Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer any Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and, solely in the Companycase of the representations made under Section 2.1(a), if 2.1(e) and 2.1(h), shall continue to be materially incorrect for a period of thirty (30) days after such Originator obtains knowledge thereof; provided that the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (materiality threshold in the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate any representation or warranty which itself contains a materiality threshold and provided further, that any misrepresentation or certification for which Buyer received a Purchase Price Credit in accordance with Section 1.5 of this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, constitute a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Termination Event hereunder.
(c) Any Originator shall breach any covenant contained in Section 4.1(b)(i) or Section 4.2 (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;than Section 4.2(a)(ii)).
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company Any Originator shall breach covenant contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, Section 4.2(a)(ii) and such that the condition set forth in Section 7.1 would breach is not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts remedied within ten (10) Business Days of its occurrence,
(e) Any Originator shall breach, fail to perform or observe any covenant contained in any Section of this Agreement (which is not covered by another subsection, paragraph or clause of this Section 5.1) or of any other Transaction Document to which it is a party which is not remedied within thirty (30) days after written notice from Buyer notifies (or the Company Administrator, as Buyer’s pledgee).
(f) (i) Failure of Jarden, any Originator or any of their material Subsidiaries to pay any Material Debt when due; (ii) default by Jarden or any of its Subsidiaries in writing the performance of any term, provision or condition contained in any agreement under which any Material Debt was created or is governed, or any other event shall occur or condition exist, the existence effect of which is to cause the holder or holders of such inaccuracy Material Debt to cause such Material Debt to become due prior to its stated maturity; (iii) Material Debt of Jarden or breach any of its Subsidiaries shall be declared to be due and payable or required to be prepaid (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) other than by a regularly scheduled payment or as a result of the sale of an asset securing such inaccuracy or breach Material Debt) prior to the expiration stated maturity thereof; or (iv) default by Jarden or any of its Subsidiaries in the Member Cure Periodperformance of any financial covenant contained in any agreement under which any Material Debt was created or is governed, provided the Company, TopCo, effect of which is to permit the holder or the applicable Member, during the Member Cure Period, continues holders of such Material Debt to exercise reasonable efforts cause such Material Debt to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured become due prior to the expiration of the Member Cure Period);its stated maturity.
(eg) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement Any Originator or Performance Guarantor shall be inaccurate generally not pay its debts as of the Agreement Date, such debts become due or shall have become inaccurate as admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedcreditors; or (ii) if any proceeding shall be instituted by or against any Originator or Performance Guarantor seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) any Originator or Performance Guarantor shall take any corporate action to authorize any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition actions set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in the foregoing clauses (i) or (ii) of this subsection (g).
(h) A Change of Control shall occur.
(i) Jarden or any of Buyer’s representations and warranties as its Subsidiaries shall fail within thirty (30) days to pay, bond or otherwise discharge, or stay execution of, one or more final judgment(s) or order(s) for the payment of a date subsequent to money in excess of $50,000,000 in the Agreement Date aggregate (exclusive of judgment or a breach of a covenant order amounts fully covered by Buyer is curable by Buyer through independent third-party insurance where the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer insurer has not disputed or denied coverage in writing of the existence respect of such inaccuracy judgment or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Periodorder).
Appears in 1 contract
Sources: Receivables Contribution and Sale Agreement (Jarden Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer Any Originator shall fail to make any payment or deposit required hereunder when due and the Companysuch failure shall continue for two (2) Business Days;
(b) by Any Originator shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (a) of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for ten (10) consecutive days after either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale any Responsible Officer of the Purchased Units by the End Date results from, such Originator becomes aware thereof or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted written notice thereof to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units such Originator by the End Date results fromAgent, or is caused by, a material breach by the Company, TopCo, any Purchaser Agent or any Member of any of its representations, warranties, covenants or agreements contained hereinPurchaser;
(c) (i) Any representation, warranty, certification or statement made by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderany Originator in this Agreement, or shall have taken any other action, having the effect of permanently restraining, enjoining Transaction Document or otherwise prohibiting the sale of the Purchased Units as contemplated herein; in any other document delivered pursuant hereto or (ii) by thereto shall prove to have been false or misleading in any material respect when made or deemed provided that any misrepresentation or certification for which Buyer if has actually received a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as Purchase Price Credit shall not constitute a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust LawTermination Event hereunder;
(d) Failure of any Originator to pay any Indebtedness when due in excess of $75,000,000 and such failure shall continue beyond the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or the default by Buyer if: any Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed (i) any of and such default shall continue for the representations and warranties of TopCoapplicable grace period, if any, under the applicable agreement), the Memberseffect of which is to cause, or to permit the Company contained holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity unless (A) BTMU is a party to such other agreement or instrument and (B) BTMU and the other requisite lenders thereunder consent to a written waiver of such default or other event in this Agreement accordance with the terms of such agreement or instrument; or any such Indebtedness of such Originator shall be inaccurate as of the Agreement Date, declared to be due and payable or shall have become inaccurate as of required to be prepaid (other than by a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (iiregularly scheduled payment) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration date of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)maturity thereof;
(e) An Event of Bankruptcy shall occur with respect to any Originator;
(f) One or more final judgments for the payment of money in an amount in excess of $75,000,000, individually or in the aggregate, shall be entered against Schein or any of its Subsidiaries and (A) such amount remains unpaid and (B) such amount remains undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Originator to enforce any such judgment;
(g) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted in, or could be reasonably expected to have, a material adverse affect on the Company if: business, financial condition, operations or properties of Schein and the ERISA Affiliates taken as a whole;
(h) A Purchase Agreement Termination Event shall have occurred;
(i) Schein becomes unable for any reason to convey or reconvey Receivables originated by Schein in accordance with the provisions of this Agreement; or
(j) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the Receivables, or any assets of Buyer’s representations , any Originator or any Affiliate and warranties contained in this Agreement the lien shall be inaccurate as of not have been released within seven (7) days or the Agreement DatePBGC shall, or shall have become inaccurate as indicate its intention to, file notice of a date subsequent lien pursuant to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if 4068 of ERISA with regard to any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Purchased Assets.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a “Termination Event”:
(a) Originator shall fail (i) to make any payment or deposit required to be made by the mutual written consent Originator hereunder when due and such failure continues for one day, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for three consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer Originator in this Agreement, any other Transaction Document or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of Originator to pay any Indebtedness when due in excess of $35 million, individually or in the aggregate; or the default by Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer Originator or the Company if a court any of competent jurisdiction or other Governmental Authority its Subsidiaries shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against Originator or any of its Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) any Material Adverse Effect shall have occurred, Originator or any event or other Effect of its Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties actions set forth in the foregoing clauses (i) or (ii) of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten this subsection (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”d), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by the Company if: A Change of Control shall occur.
(f) (i) any of Buyer’s representations and warranties contained the “Consolidated Interest Coverage Ratio” (as defined in this Agreement shall be inaccurate the Credit Agreement) as of the Agreement Date, or end of any period of four fiscal quarters of Originator shall have become inaccurate as of a date subsequent be less than 3.00 to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; 1.00 or (ii) if the “Consolidated Leverage Ratio” (as defined in the Credit Agreement) at any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition time during any period set forth in Section 8.2 would not below shall be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent greater than 4.00 to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)1.00.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a “Termination Event”:
(i) Originator shall fail to make any payment or deposit required hereunder when due and such failure continues for three (3) Business Days; or
(ii) Originator shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a) by the mutual written consent of Buyer and the Company;paragraph (e)) and such failure shall continue for five (5) consecutive Business Days.
(b) Any representation or warranty made by either Buyer the Originator in this Agreement, any other Transaction Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Transaction Document or any amendment or modification thereof or waiver thereunder shall prove to have been incorrect in any material respect when made or deemed made (except that the Company, if the Closing has materiality standard in this clause (b) shall not taken place apply to any such representation or warranty that is expressly qualified by a materiality standard or contains any carve-out or exception based on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”a Material Adverse Effect by its express terms); provided, that .
(i) Buyer shall not be permitted Failure of Originator to terminate this Agreement pursuant to this Section 9.1(bmake any payment in excess of $1,000,000 in the aggregate (whether of principal, interest or fees) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer in respect of any of its representationsIndebtedness in an aggregate principal amount exceeding $100,000,000, warranties, covenants or agreements contained hereinwhen and as the same shall become due and payable, and (ii) such failure shall continue after the Company shall not be permitted applicable grace period, if any, specified in the agreement or instrument relating to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinsuch Indebtedness; or (ii) by Buyer if a Governmental Authority provides notice any event or condition occurs that it is seekingresults in any Indebtedness of Originator in an aggregate principal amount exceeding $100,000,000 becoming due prior to its scheduled maturity; provided, or intends that this clause (ii) shall not apply to seek, the imposition of an Antitrust Restraint secured Indebtedness that becomes due as a condition to result of the expiration voluntary sale or termination transfer of any applicable waiting period under the HSR Act property or other applicable Antitrust Law;assets securing such Indebtedness or is voluntarily prepaid in full.
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Originator shall be inaccurate generally not pay its debts as of the Agreement Date, such debts become due or shall have become inaccurate as admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedcreditors; (ii) any involuntary proceeding shall be instituted by or against Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts, or of a substantial part of its assets, under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for it or any substantial part of its property, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the covenants foregoing shall be entered or deemed entered by such court; (iii) Originator shall (A) voluntarily commence any proceeding or file any petition seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts, or of a substantial part of its assets, under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in subclause (ii) of this clause (d), (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for it or any substantial part of its property, or (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (iv) Originator shall take any limited liability company, limited partnership corporate action, as applicable, to authorize or for the purpose of effecting any of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition actions set forth in Section 7.2 would not be satisfiedclauses (i), (ii) or (iii) above in this subsection (d).
(i) A Change of Control shall occur; (ii) Marathon shall cease to own, directly or indirectly, 100% of the equity interests of Buyer, MPC LP, Servicer (if Servicer is MPC LP or an Affiliate of Marathon) or Originator, Marathon Canada or Marathon Supply; or (iii) any Material Adverse Effect MPC LP shall have occurredcease to directly own 100% of the equity interests of Buyer.
(f) One or more final judgments for the payment of money in an amount in excess of $100,000,000, individually or in the aggregate, shall be entered against Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(g) This Agreement or any event other Transaction Document to which Originator is a party shall terminate in whole or other Effect shall have occurred in part (except in accordance with its terms or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any consent of the representations and warranties of the Companyparties thereto and, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) other than with respect to such inaccuracy a Letter of Credit or breach if such inaccuracy or breach is cured prior to Letter of Credit Application, the expiration of the Member Cure PeriodAdministrative Agent);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as cease to be effective or to be the legally valid, binding and enforceable obligation of a date subsequent to the Agreement DateOriginator, or Originator shall directly or indirectly contest in any manner such that the condition set forth in Section 8.1 would not be satisfied; effectiveness, validity, binding nature or (ii) if any enforceability of Buyer’s covenants contained in this Agreement or any other such Transaction Document, or Buyer shall cease to have been breached such that a valid and perfected first priority ownership or security interest in the condition set forth in Section 8.2 would not be satisfied; providedReceivables, howeverthe Related Security and the Collections with respect thereto and the Collection Accounts, that if an inaccuracy in free and clear of any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten Adverse Claims (10except for (a) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement any Adverse Claim created under this Section 9.1(eAgreement, under the Purchase Agreement or, under the Receivables Transfer Agreement (Canada) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach Receivables Transfer Agreement (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(eU.S.) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Periodand (b) Permitted Liens).
Appears in 1 contract
Sources: Receivables Sale Agreement (Marathon Petroleum Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer Such Originator shall fail to make any payment or deposit required hereunder when due and the Company;such failure shall continue for three (3) consecutive Business Days.
(b) by either Buyer Such Originator shall fail to perform or the Companyobserve any term, if the Closing has not taken place on covenant or before 5:00 p.m. agreement hereunder (Eastern time) on March 9, 2021 (the “End Date”); provided, that other than as referred to in clause (i) Buyer shall not be permitted to terminate of this Agreement pursuant to this Section 9.1(bparagraph (a)) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;other Transaction Document to which it is a party and such failure shall continue for seven (7) consecutive Business Days.
(c) Any representation, warranty, certification or statement made by such Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect when made or deemed made; PROVIDED THAT any misrepresentation or certification for which Buyer has actually received a Sale Price Credit shall not constitute a Termination Event hereunder.
(d) Failure of any Originator to pay any Indebtedness when due in excess of $2,500,000; or the default by any Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of any Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer Any Originator or the Company if a court any of competent jurisdiction or other Governmental Authority its Subsidiaries shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against such Originator or any of its Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
similar official for it or any substantial part of its property or (diii) by Buyer if: any Originator or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $2,500,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the representations and warranties execution.
(h) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which his resulted or could reasonably be expected to result in liability of TopCoany Originator under Title IV of ERISA to such Pension Plan, the Members, such Multiemployer Plan or the Company contained PBGC in this Agreement shall be inaccurate as an aggregate amount in excess of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied$1,000,000; (ii) the aggregate amount of Unfunded-Pension Liability among all Pension Plans at any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedtime exceeds $1,000,000; or (iii) any Material Adverse Effect shall have occurred, Originator or any event or other Effect ERISA Affiliate shall have occurred or circumstance or other Effect shall exist thatfail to pay when due, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Periodany applicable grace period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) any installment payment with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration its withdrawal liability under Section 4201 of the Member Cure Period);ERISA under a Multiemployer Plan in an aggregate amount in excess of $1,000,000.
(ej) by Bank Agent shall deliver a Receivables Termination Notice under and as defined in the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Intercreditor Agreement.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) IPCO shall fail (i) to make any payment or deposit (A) of principal when required to be made by the mutual written consent it hereunder or (B) any other obligation or amount not covered by clause (A) when required hereunder and such failure shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant or agreement contained in Section 4.1(a)(i), (ii), (iii), (iv), (v) or (vii)(B), Section 4.1(f)(i), or Section 4.1(j) and such failure shall continue for thirty (30) consecutive days, or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) or (ii) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for ten (10) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer IPCO in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of IPCO to pay any Indebtedness when due in excess of $200,000,000 (i) by Buyer “Material Indebtedness”); or the Company if a court default by IPCO in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any Material Indebtedness was created or is governed, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinwhich is to cause such Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of IPCO shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) any An Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy IPCO or breach if such inaccuracy or breach is cured prior to any Subsidiary of IPCO which meets the expiration definition of “Material Subsidiary” defined in the Member Cure Period);Credit and Security Agreement.
(e) by A Change of Control shall occur.
(f) One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $200,000,000, individually or in the aggregate, shall be inaccurate entered against IPCO on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(g) An Amortization Event specified in Section 9.1(p) of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Credit and Security Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)occurred.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (International Paper Co /New/)
Termination Events. This Agreement may The following events shall be terminated prior to the ClosingTermination Events (each, a “Termination Event”) hereunder:
(a) by the mutual written consent Seller or the Originator defaults in making any payment required to be made under an agreement for borrowed money to which it is a party in an aggregate principal amount in excess of Buyer $500,000 in the case of the Seller and $5,000,000 in the Company;case of the Originator and such default is not cured within the applicable cure period, if any, provided for under such agreement; or
(b) by either Buyer any failure on the part of the Seller or the Company, Originator duly to observe or perform in any material respect any other covenants or agreements of the Seller or the Originator set forth in this Agreement or the other Transaction Documents to which the Seller or the Originator is a party and the same continues unremedied for a period of thirty days (if such failure can be remedied) after the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that earlier to occur of (i) Buyer the date on which written notice of such failure requiring the same to be remedied shall not be permitted have been given to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate Seller or the sale of the Purchased Units Originator by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, Administrative Agent and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if date on which the failure to consummate Seller or the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Originator acquires knowledge thereof; or
(c) the occurrence of an Insolvency Event relating to the Seller; or
(d) the occurrence of a Servicer Default; or
(1) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $7,500,000, against the Originator, or $500,000, against the Seller, and the Seller or the Originator, as applicable, shall not have either (i) by Buyer discharged or provided for the Company if a court discharge of competent jurisdiction any such judgment, decree or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; order in accordance with its terms or (ii) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal or (2) the Originator or the Seller shall have made payments of amounts by Buyer if a Governmental Authority provides notice that it is seekingthe Originator in excess of $5,000,000, or intends by the Seller in excess of $500,000, in the settlement of any litigation, claim or dispute (excluding payments made from insurance proceeds); or
(f) the Seller shall cease to seekbe an Affiliate of the Originator or shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that reputable counsel could no longer render a substantive nonconsolidation opinion with respect thereto; or
(1) any Transaction Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Seller the Originator, or the Servicer,
(2) the Seller, the imposition of an Antitrust Restraint as a condition to Originator, the expiration Servicer or termination any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any lien or security interest thereunder, or
(3) any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a perfected first priority security interest except as otherwise expressly permitted to be released in accordance with the applicable waiting period under Transaction Document; or
(h) the HSR Act or other applicable Antitrust LawServicer shall fail to obtain the blanket fidelity bond and errors and omissions coverage contemplated by Section 6.7(g) within 15 days after the Initial Closing Date;
(d) by Buyer if: (i) the Advances Outstanding on any day exceeds the lesser of the Facility Amount and Maximum Availability and the same continues unremedied for three Business Days; provided that during the period of time that such event remains unremedied, no additional Advances or Swingline Advances will be made under this Agreement and any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.11; or
(j) as of any Determination Date, the Average Pool Delinquency Ratio exceeds 5.0%; or
(k) as of any Determination Date, the Average Pool Charged-Off Ratio exceeds 3.0%; or
(l) the Seller or its Affiliates shall fail to consummate a Term Securitization involving the Collateral within 365 days after the Closing Date and every 365 days thereafter, unless the Administrative Agent shall have agreed in writing with the Seller that a Term Securitization will be consummated at a later date with an underwriter reasonably acceptable to the Administrative Agent; or
(m) on any date of determination, the aggregate Hedge Notional Amount in effect for that day under all Hedge Transactions is less than the product of the Hedge Percentage on such day and the Hedge Amount on that day, and the same continues unremedied for a period of 15 calendar days; or
(n) the occurrence of any of clauses (a) through (e) of the representations definition of Termination Date shall have occurred and warranties Aggregate Unpaids remain outstanding thereafter; or
(o) failure on the part of TopCothe Seller or Originator to make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Collections or any other payment or deposit required to be made hereunder, including, without limitation, to any Secured Party, Affected Party or Indemnified Party) required by the Members, terms of any Transaction Document on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or
(p) the Seller shall become required to register as an “investment company” within the meaning of the 1940 Act or the Company contained in this Agreement arrangements contemplated by the Transaction Documents shall be inaccurate require registration as an “investment company” within the meaning of the Agreement Date, or 1940 Act; or
(q) there shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or exist any event or other Effect occurrence of which any Responsible Officer of the Servicer shall have occurred notice or circumstance or other Effect shall exist thatknowledge, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in that has caused a Material Adverse Effect; providedor
(r) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Seller or the Originator and such lien shall not have been released within five Business Days, however, that, in or the case Pension Benefit Guaranty Corporation shall file notice of clauses “(i)” and “(ii)” only, if an inaccuracy in a lien pursuant to Section 4068 of ERISA with regard to any of the representations and warranties assets of the Company, TopCo, Seller or the Members as of a date subsequent to the Agreement Date Originator and such lien shall not have been released within five Business Days; or
(s) any Change-in-Control shall occur; or
(t) any representation, warranty or a breach of a covenant certification made by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, Seller or the applicable MemberOriginator in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, during which has a Material Adverse Effect on the Member Cure Period, Secured Parties and which continues to exercise reasonable efforts be unremedied for a period of 30 days after the earlier to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration occur of the Member Cure Period);
(e) by the Company if: (i) any the date on which written notice of Buyer’s representations and warranties contained in this Agreement shall such incorrectness requiring the same to be inaccurate as of the Agreement Date, or remedied shall have become inaccurate as of a date subsequent been given to the Agreement Date, such that Seller or the condition set forth in Section 8.1 would not be satisfied; or Originator by the Administrative Agent and (ii) if any the date on which a Responsible Officer of Buyer’s covenants contained in this Agreement the Seller or the Originator acquires knowledge thereof; or
(u) the Servicer shall have been breached such that fail to adopt the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any Credit and Collection Policy and deliver a copy of Buyer’s representations and warranties as of a date subsequent the same to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts Administrative Agent within ten (10) Business Days 60 days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Initial Closing Date.
Appears in 1 contract
Sources: Sale and Servicing Agreement (NewStar Financial, Inc.)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer Any Originator shall fail (i) to make any payment or deposit required hereunder when due and the Company;such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer such Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; PROVIDED THAT the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromany representation or warranty which itself contains a materiality threshold and PROVIDED FURTHER, that any misrepresentation or is caused by, certification for which Buyer has actually received a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company Purchase Price Credit shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, constitute a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Termination Event hereunder.
(c) Any Originator shall breach any covenant contained in Section 4.1(b)(i) which is not cured within five (5) days, or any Originator shall breach any covenant contained in Section 4.2(c) or 4.2(e), which is not cured within thirty (30) days, or any Originator shall breach any covenant contained in Section 4.2(a), (b) or (d).
(d) Any Originator shall breach, fail to perform or observe any covenant contained in any Section of this Agreement (which is not covered by another subsection, paragraph or clause of this Section 5.1) or of any other Transaction Document to which it is a party which is not remedied within thirty (30) days after written notice from Buyer (or the Agent, as Buyer's assignee).
(i) At any time while the Parent Credit Agreement remains in effect, the occurrence of any Event of Default under and as defined therein which is not waived by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderrequisite lenders thereunder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or at any time after termination of any applicable waiting period under the HSR Act Credit Agreement, failure of Parent or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, its Subsidiaries to pay any Material Debt when due; or the Company default by Parent or any of its Subsidiaries in the performance of any term, provision or condition contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) agreement under which any Material Adverse Effect shall have occurredDebt was created or is governed, or any other event shall occur or other Effect shall have occurred condition exist, the effect of which is to cause, or circumstance to permit the holder or other Effect shall exist that, in combination with any other events, circumstances holders of such Material Debt to cause such Material Debt to become due prior to its stated maturity; or other Effects, would reasonably be expected to have Material Debt of Parent or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations its Subsidiaries shall be declared to be due and warranties of the Company, TopCo, payable or the Members as of required to be prepaid (other than by a date subsequent to the Agreement Date regularly scheduled payment or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of the sale of an asset securing such inaccuracy or breach Material Debt) prior to the expiration of the Member Cure Period, provided the Company, TopCo, stated maturity thereof; or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure there shall occur under any Derivative Contract an Early Termination Date (as defined in such inaccuracy or breach Derivative Contract resulting from (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i1) any event of Buyer’s representations and warranties contained default under such Derivative Contract as to which Parent or any Subsidiary is the Defaulting Party (as defined in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; Derivative Contract) or (ii2) if any of Buyer’s covenants contained Termination Event (as defined in this Agreement shall have been breached such that the condition set forth Derivative Contract) as to which Parent or any Subsidiary is an Affected Party (as defined in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”Derivative Contract), then and, in either event, the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).Derivative
Appears in 1 contract
Termination Events. This Agreement may The following events shall be terminated prior to the Closingtermination events (“Termination Events”) hereunder:
(a) default by the mutual written consent Borrower in the payment of Buyer any amount due and the Company;payable pursuant to Section 2.7(a)(iii), and such default shall continue for a period of five (5) days or more; or
(b) default by either Buyer or the Company, if Borrower in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale payment of the Purchased Units by the End Date results from, principal of or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale installment of the Purchased Units by principal when it becomes due and payable on the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Final Scheduled Payment Date; or
(c) the aggregate amount of Capital exceeds, for a period of two (i2) by Buyer Business Days or more, the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale product of the Purchased Units as contemplated hereinNet Advance Rate and the Collateral Amount; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator to make any payment or deposit required by Buyer if: the terms of any Transaction Documents; or
(f) failure on the part of the Borrower or the Originator in any material respect to observe or perform any of its covenants or agreements set forth in this Agreement or any other Transaction Document and such failure continues unremedied for more than 30 Business Days after written notice to the Borrower or the Originator (or 60 days if necessary to remedy such default); or
(g) any representation or warranty made or deemed to be made by the Borrower or the Originator under or in connection with any of the Transaction Documents or any information required to be given by the Borrower or the Originator to identify Loans or Contracts pursuant to any Transaction Document, shall prove to have been false or incorrect in any material respect when made, deemed made or delivered, and such failure continues unremedied for more than 30 days after the earlier of (x) the date on which the Borrower or Credit Acceptance discovers such breach or (y) the date on which the Borrower or Credit Acceptance receives written notice of such breach; or
(h) the occurrence of an Insolvency Event relating to the Originator, the Borrower or the Servicer; or
(i) any the Borrower shall become an “investment company” or require registration as an “investment company” within the meaning of the representations and warranties of TopCoInvestment Company Act; or
(j) a regulatory, tax or accounting body has ordered that the Members, or the Company contained in this Agreement shall be inaccurate as activities of the Agreement Date, Borrower or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any Affiliate of the covenants of Borrower contemplated hereby be terminated or may reasonably be expected to cause the CompanyBorrower or any Affiliate to suffer materially adverse regulatory, TopCo, accounting or the Members contained in this Agreement tax consequences; or
(k) there shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or exist any event or other Effect occurrence that has a reasonable possibility of causing a Material Adverse Effect; or
(l) the Borrower, the Servicer or Credit Acceptance shall have occurred enter into any merger, consolidation or circumstance conveyance transaction, unless in the case of Credit Acceptance or other Effect the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(m) either (i) the IRS shall exist that, in combination file notice of a lien pursuant to Section 6323 of the Code with regard to any other events, circumstances or other Effects, would assets of the Originator and such lien (A) could reasonably be expected to have or result in a Material Adverse Effect; providedEffect with respect to the Originator and (B) shall not have been released within five (5) Business Days, however, that, in the case of clauses “(i)” and “or (ii)” only, if an inaccuracy in ) the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the representations and warranties assets of the Company, TopCo, Borrower or the Members as of Originator and such lien (A) could reasonably be expected to have a date subsequent Material Adverse Effect with respect to the Agreement Date or Originator and (ii) shall not have been released within five (5) Business Days; or
(n) the Collateral Agent ceases to have a breach valid and perfected first priority security interest in a material portion of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or Collateral and such Member through the use of reasonable efforts failure has not been remedied within ten (10) Business Days after Buyer notifies Days; provided that, the Company in writing portion of the existence of such inaccuracy or breach (Collateral in which the “Member Cure Period”), then Buyer may Collateral Agent does not terminate this Agreement under this Section 9.1(d) as have a result of such inaccuracy or breach prior to valid and perfected first priority security interest will be material if the expiration outstanding balance of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration related Contracts exceeds 3% of the Member Cure Period);Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(e) by the Company if: (io) any Change-in-Control shall occur; or
(p) cumulative Collections are less than 75% of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if cumulative Forecasted Collections for any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)three consecutive Collection Periods.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Originator shall fail (i) to make any payment or deposit required to be made by the mutual written consent Originator hereunder when due and such failure continues for one (1) day, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer Originator in this Agreement, any other Transaction Document or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of Originator to pay any Indebtedness when due in excess of $35 million, individually or in the aggregate; or the default by Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer Originator or the Company if a court any of competent jurisdiction or other Governmental Authority its Subsidiaries shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against Originator or any of its Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) any Material Adverse Effect shall have occurred, Originator or any event or other Effect of its Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties actions set forth in the foregoing clauses (i) or (ii) of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten this subsection (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”d), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) A Change of Control shall occur.
(f) The senior unsecured long-term debt rating of Avnet shall fall below BBB, as determined by Standard & Poor's Ratings Services, and shall fall below Baa2, as determined by Moody's Investors Service, Inc.
(g) One o▇ ▇▇▇▇ final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $50,000,000, individually or in the aggregate, shall be inaccurate entered against Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Originator shall fail (i) to make any payment or deposit (A) of principal when required to be made by the mutual written consent it hereunder or (B) any other obligation or amount not covered by required hereunder and such failure shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant or agreement contained in Section 4.1(a)(i), (ii), (iii), (iv), (v) or (vii)(B), Section 4.1(b)(v), Section 4.1(f)(i) or Section 4.1(j) and such failure shall continue for thirty (30) consecutive days, or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) or (ii) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for ten (10) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of Originator to pay any Indebtedness when due in excess of $200,000,000 (i) by Buyer “Material Indebtedness”); or the Company if a court default by Originator in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any such Indebtedness was created or is governed, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinwhich is to cause Material Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of Originator shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) any An Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy the Originator or breach if such inaccuracy or breach is cured prior to the expiration any Material Subsidiary of the Member Cure Period);Originator.
(e) by A Change of Control shall occur.
(f) One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $200,000,000, individually or in the aggregate, shall be inaccurate entered against Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(g) An Amortization Event specified in Section 9.1(p) of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Credit and Security Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)occurred.
Appears in 1 contract
Sources: Receivables Sale Agreement (International Paper Co /New/)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) the Transferor, any Seller or the Servicer shall fail to make any payment or deposit to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents and such failure shall continue for one (1) Business Day after the Company;date such payment or deposit became due hereunder or thereunder; or
(b) by either Buyer any representation, warranty, certification or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units statement made by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Transferor or any Member of any of its representationsSeller in this Agreement, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that Transaction Document to which it is seeking, a party or intends in any other document delivered pursuant hereto or thereto shall prove to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy incorrect in any of the representations and warranties of the Company, TopCo, material respect when made or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfieddeemed made; provided, however, that if any such representation, warranty, certification or statement relates to a Receivable for which the Transferor has paid to the Servicer an inaccuracy amount equal to the Outstanding Balance of such Receivable pursuant to Section 2.9(a) hereof, then the breach of such representation or warranty shall not give rise to a Termination Event under this subsection (b); or
(c) Failure on the part of any Seller or the Transferor to observe or perform in any material respect any other term, covenant or agreement in this Agreement or any other Transaction Document; or
(d) (i) failure of Buyer’s representations the Transferor, any Seller, or any Affiliate of the Transferor or any Seller to pay when due any amounts due under any agreement to which any such Person is a party and warranties as under which any Indebtedness greater than $1,000,000 is governed; or (ii) the default by the Transferor, any Seller or any Affiliate of the Transferor or any Seller in the performance of any term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the Transferor, any Seller or any Affiliate of the Transferor or any Seller greater than $1,000,000 was created or is governed, regardless of whether such event is an "event of default" or "default" under any such agreement; or (iii) any Indebtedness owing by the Transferor, any Seller or any Affiliate of the Transferor or any Seller greater than $1,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) by reason of a date subsequent breach or default of same prior to the Agreement date of maturity thereof; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor, any Seller, or any Affiliate of either the Transferor or any Seller; or
(f) the Administrative Agent, on behalf of the Funding Agents, the Initial Purchasers and the APA Bank Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims; or
(g) a Servicer Default shall have occurred; or
(h) the Purchase Termination Date shall have occurred under the Receivables Purchase Agreement; or
(i) (A) without obtaining the prior written consent of the Administrative Agent, the Funding Agents and the Required Participants, the Transferor or any Seller shall enter into any transaction or merger whereby it is not the surviving entity or (B) a breach Change of Control shall occur; or
(j) there shall have occurred any material adverse change in the operations of the Transferor or any Seller since the Amendment Effective Date, or any other Material Adverse Effect shall have occurred; or
(k) the institution of any litigation, arbitration proceedings or governmental proceeding involving any Seller or the Transferor or the Receivables which would be reasonably probable to have a covenant Material Adverse Effect; or
(i) the Percentage Factor exceeds the Maximum Percentage Factor unless the Transferor deposits to the Funding Accounts on the next Business Day, for the benefit of the Initial Purchasers and/or the APA Bank Purchasers, as applicable, from previously received Collections that have been released to or set aside for the Transferor pursuant to Section 2.5 hereof, an amount that brings the Percentage Factor to less than or equal to the Maximum Percentage Factor or increases the balance of the Receivables on the next Business Day so as to reduce the Percentage Factor to less than or equal to 100%; or (ii) the Aggregate Net Investment shall exceed the Facility Limit; or
(m) the two week rolling average of Weekly Net Sales shall decline by Buyer an amount greater than 15%; or
(n) the Advance Rate shall be less than 60.0%; or
(i) the average years of employment by the Sellers of the Sellers' sales employees (excluding administrative staff) is curable less than 2.0 years; or (ii) the aggregate number of the Sellers' sales employees shall be less than 50; or
(p) the minimum net worth of TMN and its Consolidated Subsidiaries (as defined in accordance with GAAP) is less than $24,000,000; or
(q) one or more judgments for the payment of money in an aggregate amount in excess of $2,000,000 shall be rendered against the Transferor, a Seller, the Servicer or their subsidiaries or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by Buyer through a judgment creditor to attach or levy upon any assets of the use Transferor, a Seller, the Servicer or their subsidiaries to enforce any such judgment; or
(r) the Servicer shall fail to deliver to the Administrative Agent, each Funding Agent and the Successor Servicer an accurate and timely report required to be delivered by it under the terms of reasonable efforts the Transaction Documents within ten three (103) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(ei) with respect to any Settlement Report or Weekly Report, when such inaccuracy report was due or breach if (ii) with respect to any other report, receipt by the Servicer of written notice from the Administrative Agent, any Funding Agent or the Successor Servicer that such inaccuracy or breach report is cured prior to the expiration of the Buyer Cure Period)due.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Idine Rewards Network Inc)
Termination Events. This Agreement may The following events shall be terminated prior to the Closingtermination events (“Termination Events”) hereunder:
(a) by the mutual written consent of Buyer and the Company;Payment Rate averaged for any three (3) consecutive Collection Periods is less than 4.0%; or
(b) by either Buyer or [Reserved.]; or
(c) the Company, if Termination Date shall have occurred; or
(d) the Closing has not taken place on or before 5:00 p.m. Weighted Average Performing Advance Rate exceeds 53.0%; or
(Eastern timee) on March 9any Determination Date, 2021 the average Net Yield Percentage for the preceding three (the “End Date”)3) Collection Periods with respect to which Net Yield Percentage was calculated is less than 1.0%; provided, that or
(f) a Servicer Termination Event occurs and is continuing; or
(g) (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if failure on the failure to consummate the sale part of the Purchased Units Borrower or the Originator to make any payment or deposit required by the End Date results from, terms of any Transaction Document on the day such payment or deposit is caused by, a material breach by Buyer required to be made; or(i) (ii) failure on the part of the Borrower or the Originator to observe or perform any of its representations, warranties, covenants or agreements contained hereinset forth in this Agreement or any Transaction Document and such failure continues unremedied for more than five (5) Business Days after written notice to the Borrower or the Originator;
(h) any representation or warranty made or deemed to be made by the Borrower or the Originator under or in connection with this Agreement, any of the other Transaction Documents or any information required to be given by the Borrower or the Originator to the Deal Agent or the Collateral Agent to identify Loans or Contracts pursuant to any Transaction Document, shall prove to have been false or incorrect in any material respect when made, deemed made or delivered; or
(i) the occurrence of an Insolvency Event relating to the Originator, the Borrower or the Servicer; or
(j) the Borrower shall become an “investment company” within the meaning of the Investment Company Act of 1940, as amended or the arrangements contemplated by the Transaction Document shall require registration as an “investment company” within the meaning of the 40 Act; or
(k) a regulatory, tax or accounting body has ordered that the activities of the Borrower or any Affiliate of the Borrower, contemplated hereby be terminated or, as a result of any other event or circumstance, the activities of the Borrower contemplated hereby may reasonably be expected to cause the Borrower or any of its respective Affiliates to suffer materially adverse regulatory, accounting or tax consequences; or
(l) there shall exist any event or occurrence that has a reasonable possibility of causing a Material Adverse Effect; or
(m) the Borrower, the Servicer or Credit Acceptance shall enter into any merger, consolidation or conveyance transaction, unless in the case of Credit Acceptance or the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(n) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Borrower or the Originator and such lien shall not have been released within five (5) Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower or the Originator and such lien shall not have been released within five (5) Business Days; or
(o) the Collateral Agent, as agent for the secured parties, shall fail for any reason to have a first priority perfected security interest in the Collateral; or
(p) any Change-in-Control shall occur; or
(i) any Transaction Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Originator, or the Servicer (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if Borrower, the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer Originator or the Company if a court of competent jurisdiction Servicer shall, directly or other Governmental Authority shall have issued a final and nonappealable Orderindirectly, contest in any manner such effectiveness, validity, binding nature or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; enforceability or (iii) any Material Adverse Effect shall have occurred, or security interest securing any event or other Effect shall have occurred or circumstance or other Effect shall exist thatobligation under any Transaction Document shall, in combination with any other eventswhole or in part, circumstances or other Effects, would reasonably cease to be expected to have or result in a Material Adverse Effectperfected first priority security interest; provided, however, that, in or
(r) the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any occurrence of the representations and warranties thirtieth (30th) day after the end of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or fiscal quarter in which a breach of a any covenant set forth in Sections 7.4, 7.5, 7.6 and 7.7 of the Credit Agreement shall occur unless prior to such date, such breach is cured or waived by the CompanyDeal Agent in the Deal Agent’s sole discretion; or
(s) Credit Acceptance shall fail to pay any principal of or premium or interest on any Material Debt, TopCowhen 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 Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or any Member is curable by to permit the Companyacceleration of, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence maturity of such inaccuracy Material Debt; or breach any such Material Debt shall be declared to be due and payable or required to be prepaid (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(dother than by a regularly scheduled required prepayment) as a result of such inaccuracy or breach prior to the expiration stated maturity thereof; or
(t) Collections are less than 70.0% of Forecasted Collections for any three consecutive Collection Periods; or
(u) a Take-Out has not occurred within 364 days of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Effective Date, or shall have become inaccurate as within 360 days of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days most recent Take-Out occurring after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Effective Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. This Agreement may If any of the following events (each, a “Termination Event”) shall occur and be terminated prior to the Closingcontinuing:
(a) by the mutual Borrower shall default in the payment of any amount required to be made under the terms of this Agreement and such failure continues unremedied for a period of three Business Days after the due date set forth herein for such payment, or if no due date is specified, such failure continues for a period of twenty (20) days after written consent of Buyer and the Company;request for such payment has been made; or
(b) by either Buyer or the Company, if amount described in clause (ii) of the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (definition of Availability shall exceed the “End Date”); provided, that amount described in clause (i) Buyer of the definition of Availability, for more than three Business Days; or
(i) the Borrower shall not be permitted fail to terminate perform or observe in any material respect any other covenant or other agreement of the Borrower set forth in this Agreement pursuant and any other Transaction Document to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromwhich it is a party, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company Originator shall fail to perform or observe in any material respect any term, covenant or agreement of such Originator set forth in any other Transaction Document to which it is a party, in each case when such failure continues unremedied for more than twenty (20) days after written notice thereof shall have been given by the Deal Agent or any other Secured Party to such Person; or
(d) any representation or warranty made or deemed made hereunder shall prove to be incorrect in any material respect as of the time when the same shall have been made, and such incorrect representation or warranty shall not be permitted have been eliminated or otherwise cured within a period of twenty (20) days after written notice thereof shall have been given by the Deal Agent or any other Secured Party to terminate this Agreement pursuant the Borrower; or
(e) an Insolvency Event shall occur with respect to this Section 9.1(bthe Borrower; or
(f) if the failure to consummate the sale a Servicer Termination Event occurs; or
(g) any Change-in-Control of the Purchased Units by the End Date results from, Borrower or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Originator occurs; or
(ch) the Borrower or the Originator defaults in making any payment required to be made under any material agreement for borrowed money to which either is a party and such default is not cured within the relevant cure period; or
(i) the Deal Agent, as agent for the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(i) a final judgment for the payment of money in excess of $5,000,000 shall have been rendered against the Originator or $100,000 against the Borrower by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority and, if such judgment relates to the Originator, the Originator shall have issued a final and nonappealable Ordereither: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or shall have taken any other action, having (2) perfected a timely appeal of such judgment and caused the effect of permanently restraining, enjoining execution thereof to be stayed (by supersedes or otherwise prohibiting during the sale pendency of the Purchased Units as contemplated herein; such appeal or (ii) by Buyer if a Governmental Authority provides notice that it is seekingthe Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $1,000,000 or $100,000, respectively, in settlement of any litigation; or
(k) the Borrower or the Servicer agrees or consents to, or intends otherwise permits to seekoccur, the imposition any amendment, modification, change, supplement or recession of an Antitrust Restraint as a condition or to the expiration Credit and Collection Policy in whole or termination in part that could have a material adverse effect upon the Loans or interest of any applicable waiting period under Lender, without the HSR Act or other applicable Antitrust Law;prior written consent of the Deal Agent; or
(dl) by Buyer if: on any day, either (i) any the aggregate Hedge Notional Amount is less than the product of the representations Hedge Percentage on such day and warranties the Hedge Amount on that day, or (ii) any Hedge Transaction fails to meet the requirements set forth in Section 5.2(a) and such failure continues unremedied for a period of TopCoten consecutive days; or
(m) the Aggregate Net M▇▇▇ to Market Amount exceeds $10,000,000 for two consecutive Determination Dates; or
(n) on any Determination Date, the MembersRolling Three-Month Portfolio Yield does not equal or exceed Minimum Portfolio Yield and such failure continues for a period of 15 consecutive days; or
(o) the Rolling Three-Month Default Ratio shall exceed 5.0%; or
(p) the Rolling Three-Month Charged-Off Ratio shall exceed 2.5%; or
(q) any two of (i) M▇▇▇▇ ▇▇▇▇▇▇, (ii) I▇▇ ▇▇▇▇▇▇, and (iii) J▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(r) the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or any rules, regulations or orders issued by the SEC thereunder; or
(s) the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances and the Swingline Advances by the Borrower made by the Lenders, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any other person or entity of the Company contained 1940 Act or the rules and regulations promulgated thereunder; or
(t) a Material Adverse Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(u) a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the legal conclusions made in the true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; or
(v) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 12.0%; or
(w) the Servicer shall fail to deliver an amended and restated Credit and Collection Policy to the Deal Agent and each Lender Agent by June 30, 2005; then, and in any such event, the Deal Agent may, with the consent of the Required Lenders, and shall, at the direction of the Required Lenders, by notice to the Borrower, declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and all Obligations owing by the Borrower under this Agreement shall be inaccurate as of the Agreement Date, or shall have accelerated and become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effectimmediately due and payable; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such event that the condition set forth Termination Event described in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result herein has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Upon any such inaccuracy declaration or breach prior to the expiration automatic occurrence of the Buyer Cure PeriodTermination Date, provided Buyerno Advances or Swingline Advances will be made, during and the Buyer Cure PeriodDeal Agent and the other Secured Parties shall have, continues in addition to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate all other rights and remedies under this Agreement pursuant or otherwise, all rights and remedies provided under the UCC of each applicable jurisdiction and other Applicable Laws, including the right to this Section 9.1(e) with respect sell the Collateral, which rights and remedies shall be cumulative. The aforementioned rights and remedies shall be without limitation, and shall be in addition to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration all other rights and remedies of the Buyer Cure Period)Deal Agent and the Secured Parties otherwise available under any provision of this Agreement by operation of law, at equity or otherwise, each of which are expressly preserved.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Termination Events. This Agreement may If any of the following events (each an "Termination Event") shall occur and be terminated prior to the Closingcontinuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure remains unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer any Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto (excluding any representation or warranty made pursuant to Section 4.01(s) of this Agreement or Section 3.1(i) of the CompanyServicing Agreement) shall prove to have been incorrect in any material respect when made or deemed made, if other than any breach of a representation relating to a Receivable that has been repurchased pursuant to Section 2.03 of the Closing Originator Purchase Agreement; or
(c) any Transaction Party shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(n) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (ii), such failure shall remain unremedied for ten days after a Responsible Officer of such Transaction Party has not taken place on actual knowledge or before 5:00 p.m. receives written notice thereof; or
(Eastern timed) on March 9, 2021 (the “End Date”); provided, any event or condition occurs that (i) Buyer shall not be permitted results in any Material Indebtedness becoming due prior to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; scheduled maturity or (ii) by Buyer if a Governmental Authority provides notice that it is seekingenables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or intends to seekrequire the prepayment, the imposition of an Antitrust Restraint as a condition repurchase, redemption or defeasance thereof, prior to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
its scheduled maturity; provided that this clause (d) by Buyer if: shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Administrative Agent, on behalf of the Conduit Lenders and the Committed Lenders, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Collateral; or
(g) a Collection Agent Default shall occur; or
(h) any Change of Control shall occur; or
(i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or there shall have become inaccurate as of a date subsequent to the Agreement Dateoccurred since December 31, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or 2003 any event or other Effect shall have occurred condition which has had or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would could reasonably be expected to have a material adverse effect on (A) the validity, enforceability or result in collectibility of the Receivables taken as a Material Adverse Effectwhole or (B) the ability of any Transaction Party to perform its obligations under the Transaction Documents; providedor
(j) the Percentage Factor exceeds the Maximum Percentage Factor, howeveras determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement, that, and such circumstance remains unremedied for three consecutive Business Days; or
(k) the average Dilution Ratio for any three consecutive Calculation Periods exceeds (i) in the case of clauses “any such period that includes sales from the month of July (ifor the avoidance of doubt such periods include the August, September and October Calculation Periods) or December (for the avoidance of doubt such periods include January, February and March Calculation Periods)” and “, 5.0% or (ii)” only) in the case of any other period, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of 4.80%; provided that the existence of such inaccuracy circumstance shall not constitute a "Termination Event" hereunder if (x) the last such Calculation Period ends on or breach (before the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to date on which the expiration initial public offering of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach shares of common stock of TRW Automotive Holdings Corp. is consummated and (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(dy) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement no Loans shall be inaccurate have been outstanding as of the Agreement Date, last day of such Calculation Period or shall have become inaccurate as at any time thereafter until the first Monthly Reporting Date on which the Funding Agents receive a Monthly Report demonstrating that such circumstance no longer exists; or
(l) the average Default Ratio for any three consecutive Calculation Periods exceeds 1.30%; or
(m) the average Delinquency Ratio for any three consecutive Calculation Periods exceeds 4.30%; or
(n) any Transaction Party receives notice or becomes aware that a notice of a date subsequent to the Agreement Date, such that the condition set forth in lien has been filed against any Transaction Party under Section 8.1 would not be satisfied; or (ii412(n) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence IRC or Section 302(f) of such inaccuracy ERISA for a failure to make a required installment or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this other payment to a plan to which Section 9.1(e412(n) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy IRC or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e302(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).ERISA applies; or
Appears in 1 contract
Sources: Receivables Loan Agreement (TRW Automotive Holdings Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) any representation or warranty made by the mutual written consent Transferor in any Transaction Document shall prove to have been incorrect when made, and as a result of which the interests of the Agent, the Buyer or any other Owner hereunder are materially and the Companyadversely affected;
(b) any failure by either Buyer the Transferor to make any payment, transfer or the Company, if the Closing has not taken place deposit on or before 5:00 p.m. (Eastern time) on March 9the date such payment, 2021 (transfer or deposit is required to be made under the “End Date”); provided, that (i) Buyer shall not be permitted to terminate terms of this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale which continues unremedied for a period of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinfive Business Days;
(c) (i) by Buyer failure on the part of the Transferor duly to observe or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken perform in any material respect any other action, having the effect of permanently restraining, enjoining covenants or otherwise prohibiting the sale agreements of the Purchased Units as contemplated herein; or (ii) by Buyer if Transferor set forth in any Transaction Document and which continues unremedied for a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition period of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law10 days;
(d) a failure by Buyer if: the Transferor, CompuCredit or any direct Affiliate thereof to perform any term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the Transferor, CompuCredit or any direct Affiliate thereof greater than $5,000,000 was created or is governed, regardless of whether such failure constitutes an "event of default" or "default" under any such agreement; or any Indebtedness owing by the Transferor, CompuCredit or any direct affiliate thereof (iother than Indebtedness of CompuCredit of the type described in clause (vi) of the definition of "Indebtedness") greater than $5,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof;
(e) any Event of Bankruptcy shall occur with respect to the Transferor, CAC, the Account Owner, the Servicer or the Sub-Servicer;
(f) the Agent, on behalf of the representations Buyer and warranties of TopCothe other Owners, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of Receivables;
(g) a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect Servicer Default shall have occurred, and as a result of which the interests of the Agent, the Buyer or any event or other Effect Owner are materially and adversely affected;
(h) there shall have occurred any material adverse change in the operations of the Transferor, Servicer or circumstance Sub-Servicer, or other Effect shall exist that, in combination with any other eventsevent, circumstances which materially adversely affects the Transferor's, Servicer's or Sub-Servicer's ability either to collect upon the Receivables or to perform its obligations under the Transaction Documents;
(a) the Liquidity Provider or the Credit Support Provider shall have given notice that an event of default has occurred and is continuing under any of its respective agreements with Buyer; or (b) the Transferor, CAC or any Account Owner is unable for any reason to transfer Receivables in accordance with the provisions of the applicable Transaction Documents; or (c) the Transferor, CAC or any Account Owner for any reason ceases to transfer the Receivables in accordance with the provisions of the applicable Transaction Documents; or (d) a regulatory, tax or accounting body has ordered that the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby be terminated or, as a result of any other Effectsevent or circumstance, would the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby may reasonably be expected to cause the Buyer, such Liquidity Provider or such Credit Support Provider, the Person then acting as the administrator or the manager for the Buyer, or any of their respective Affiliates, as applicable, to suffer materially adverse regulatory, accounting or tax consequences.
(j) the Subordinate Percentage is less than the Required Subordinate Percentage;
(k) CB&T or CAC shall default in the performance of any payment or undertaking to be performed or observed by it under the CB&T Agreement, Affinity Card Agreement or the Facilities Management Agreement and such default shall continue beyond any applicable grace period and shall have a material adverse effect on the interests of the Agent, the Buyer or result any other Owner;
(l) for so long as the Affinity Card Agreement is in a Material Adverse Effect; providedeffect, howeverthe Letter of Credit (as such term is defined in the Affinity Card Agreement) maintained by CompuCredit in favor of CB&T pursuant to Section 3.3 of the Affinity Card Agreement shall, thatwithout the consent of CB&T, be terminated, revoked or reduced, or shall be drawn on, and such termination, revocation or reduction shall not have been remedied within five days and, in the case of clauses “a drawing, such drawing shall not have been reimbursed within five days;
(i)” and “(ii)” only, m) if an inaccuracy in any of the representations and warranties of the Company, TopCo, CB&T is acting as Servicer or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) Sub-Servicer with respect to such inaccuracy the Receivables or breach if such inaccuracy or breach is cured prior to the expiration Accounts in any material respect, the rating of the Member Cure Period)senior unsecured debt of CB&T is downgraded below Baa2 by ▇▇▇▇▇'▇ or BBB by Standard & Poor's, respectively;
(en) by CompuCredit Corporation shall at any time fail to own more than 50% of the Company if: outstanding voting stock of CompuCredit Acquisition Corporation or CompuCredit Acquisition Corporation shall at any time fail to own more than 50% of the outstanding voting stock of the Transferor;
(io) any of Buyer’s representations Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by CompuCredit, its Affiliates or agents, and warranties contained in this Agreement such individual's position shall not be filled within 60 days of such individual's termination of employment or status as an agent by an individual approved by the Agent;
(p) the Payment Rate for any Collection Period referenced below shall be inaccurate as of equal to or less than the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition percentage set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached opposite such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).Collection Period below:
Appears in 1 contract
Sources: Transfer and Administration Agreement (Compucredit Corp)
Termination Events. This Agreement may be terminated prior to A termination event ("Termination Events") shall occur if any of the Closingfollowing events occurs:
(ai) Servicer (if Amphenol) shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii)) and such failure shall remain unremedied for three Business Days, or (ii) Servicer (if Amphenol) or Seller shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Companyit hereunder when due;
(b) Any representation or warranty made or deemed to be made by either Buyer Seller, Servicer, Amphenol or the Company, if the Closing has not taken place on any Originator (or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants their respective officers) under or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, in connection with any Transaction Document or any Member of Periodic Report or Liquidation Statement or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any of its representations, warranties, covenants material respect when made or agreements contained hereindeemed made;
(c) (i) by Buyer Seller, Amphenol or the Company if a court of competent jurisdiction any other Originator shall fail to perform or observe in any material respect any other Governmental Authority term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for 30 Business Days after written notice thereof shall have issued a final and nonappealable Order, or shall have taken any other action, having been given by the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends Agent to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust LawSeller;
(d) by Buyer ifA default shall have occurred under any agreements, indentures or instruments under which Seller, Amphenol or any Material Subsidiary of Amphenol has outstanding indebtedness for borrowed money (including guarantees of such indebtedness but excluding non-recourse indebtedness) in excess of $20 million in principal amount and: (i) any of the representations such indebtedness is already due and warranties of TopCo, the Members, payable in full or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any such default has resulted in the acceleration of the covenants maturity of the Companysuch indebtedness, TopCo, or the Members contained in this Agreement each case after a period of five days during which period such default shall not have been breached cured or such that the condition set forth in Section 7.2 would acceleration shall not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effectbeen rescinded; provided, however, that, in that no "Termination Event" shall result from any acceleration of any indebtedness existing under the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent Original RPA due to the Agreement Date or a breach recapitalization of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company Amphenol and its subsidiaries referred to in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period5.01(q)(i);
(e) by An Event of Bankruptcy shall have occurred with respect to Seller, Amphenol or any other Originator;
(f) The Aggregate Pay-Out Amount shall exceed the Company if: Pay-Out Amount Limit at any time during any month and such condition shall continue to exist unremedied for two Business Days after the related Report Date with respect to such month; Receivables Purchase Agreement - 45
(g) The Default Ratio exceeds 8.0% at any time or the arithmetic mean of the Default Ratios for the most recent three calendar months exceeds 5.5%;
(h) The Dilution Ratio exceeds 7.75% at any time;
(i) The arithmetic mean of the Delinquency Ratios for the most recent three calendar months exceeds 9.5% at any time;
(j) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of Buyer’s representations the assets of Seller and warranties contained in this Agreement such lien shall be inaccurate as of not have been released within ten Business Days, or the Agreement DatePension Benefit Guaranty Corporation shall, or shall have become inaccurate as indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of ERISA with regard to any of the Agreement Date, such that the condition set forth assets of Seller or any Originator;
(k) The warranties in Section 8.1 would Sections 6.01(i)(ii) and 6.02
(i) (ii) shall not be satisfiedtrue at any time;
(l) A Change in Control shall have occurred;
(i) Any Transaction Document, or any ownership or other interest granted or created thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of Seller, Servicer or any Originator; or (ii) if Seller, Servicer, any of Buyer’s covenants contained Originator or any other Amphenol Person shall, directly or indirectly, contest in this Agreement any manner such effectiveness, validity, binding nature or enforceability;
(n) Seller's Tangible Net Worth shall be less than $4,000,000 for more than five (5) consecutive Business Days; or
(o) a Purchase and Sale Termination Event shall have been breached such that the condition set forth in Section 8.2 would not occurred and be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)continuing.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Amphenol Corp /De/)
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events ("TERMINATION EVENTS") shall occur:
(a) Servicer (if Wackenhut) shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in CLAUSE (II) next following) and such failure shall remain unremedied for five Business Days or (ii) Servicer (if Wackenhut) or the Transferor (if not Servicer) shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Buyer the Transferor, Servicer or the Companyany Originator (or any of their respective officers) under or in connection with this Agreement, any other Agreement Document, or any Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9such condition shall be amenable to remedy, 2021 (the “End Date”); provided, that such condition shall continue unremedied for a period of ten Business Days after (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units written notice thereof by the End Date results from, Agent or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromTransferor, Servicer or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;such Originator has actual knowledge thereof; or
(c) The Transferor, Servicer, Wackenhut or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document, on their respective parts to be performed or observed and any such failure shall remain unremedied for five Business Days after the date on which the Transferor, Servicer, Wackenhut or such Originator knew or should have known of such failure; or
(d) A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $100,000 of, or guaranteed by, the Transferor, Servicer, Wackenhut, any Originator or any Subsidiary of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice or both) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or any default under any agreement or instrument relating to the purchase of receivables of the Transferor, Wackenhut, any Originator or any Subsidiary of any thereof, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default is to terminate, or permit the termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of the Transferor to reinvest in receivables the principal amount paid by any party to such agreement or instrument for interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and remained continuing with respect to the Transferor, Servicer, Wackenhut, any Originator or any Subsidiary of any thereof; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Buyer the Transferor to the Agent, prior to the date of execution and delivery of this Agreement is pending against the Transferor, Servicer, Wackenhut, any Originator or the Company if a court any Subsidiary of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderany thereof, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seekingany material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or intends to seek45 governmental proceedings so disclosed, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatwhich, in the case of clauses “CLAUSE (I) or (II), in the opinion of the Agent, is likely to materially adversely affect the financial position or business of the Transferor, Servicer, any Originator or any Subsidiary of any thereof or impair the ability of the Transferor or Servicer to perform its obligations under this Agreement; or
(g) The Aggregate Required Allocations shall at any time exceed the Required Allocations Limit; or
(h) The Losses to Liquidations Ratio exceeds 2%; or
(i)” and “) The average of the Deemed Default Ratios for any three consecutive fiscal months exceeds 2.5% or
(ii)” onlyj) The average of the Dilution Ratios for any three consecutive fiscal months exceeds 2.5%; or
(k) There shall have occurred any event which materially adversely affects the collectibility of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of the Transferor, if an inaccuracy any Originator or Servicer to collect Pool Receivables or the ability of the Transferor or Servicer to perform hereunder or the warranty in SECTION 6.1(L) shall not be true at any time; or
(l) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the representations and warranties assets of the CompanyTransferor, TopCoServicer, the Seller, any Originator or any Subsidiary of any thereof and such lien shall not have been released within 30 days, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement DatePension Benefit Guaranty Corporation shall, or shall have become inaccurate as indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if Employee Retirement Income Security Act of 1974 with regard to any of Buyer’s covenants contained in this Agreement the assets of the Transferor, Servicer, the Seller, any Originator or any Subsidiary of any thereof; or
(m) A Purchase and Sale Termination Event shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedoccurred; providedor
(n) The Wackenhut Family shall at any time, howeverdirectly or indirectly, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing control less than 33 1/3% of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration voting securities of the Buyer Cure PeriodTransferor, provided Buyerthe Seller, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy Servicer or breach any Originator; or
(it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(eo) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration The Agent on behalf of the Buyer Cure Period)Purchaser and the Bank Investors, fail for any reason to have a perfected first priority security interest as described in SECTION 9.1.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Wackenhut Corp)
Termination Events. This Agreement may The following events shall be terminated prior to the Closing“Termination Events” hereunder:
(ai) Servicer (if LOL or any Affiliate is the Servicer) or any Sub-Servicer shall fail to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for more than seven (7) Business Days, or (ii) Seller or Servicer (if LOL or Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the case of any other payment or deposit required to be made by the mutual written consent it hereunder, within five (5) Business Days, of Buyer when first due and the Company;payable hereunder; or
(b) Any representation or warranty made or deemed to be made by either Buyer Seller, LOL, individually or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of in its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCocapacity as Servicer, or any Member of other Originator, under or in connection with this Agreement, any of its representationsother Transaction Document, warrantiesor any Servicer Report, covenants Monthly Report or agreements contained herein;other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and, but only to the extent such breached representation or warranty is susceptible to cure, shall remain uncured for ten (10) Business Days; or
(c) Seller, LOL (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedAgreement; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; other Transaction Document or (iii) any other material agreement with, or other undertaking in favor of, CoBank or any of the Purchasers, to be performed or observed on the part of Seller, LOL or such Originator (as the case may be) and any such failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have been given by the Administrator, CoBank or such Purchaser, as the case may be, to the applicable non-performing party (but, in the case of clause (iii) only, only to the extent such failure would result in the occurrence of a Material Adverse Effect Effect); or
(d) Seller or any Originator shall fail to make any payment in respect of any Indebtedness having an aggregate principal (or equivalent) amount in excess of $10,000,000, when and as the same shall become due and payable (giving effect to any applicable grace or cure periods); or
(e) Any event or condition occurs that results in any Indebtedness of Seller or any Originator having an aggregate principal (or equivalent) amount in excess of $10,000,000 becoming due prior to its scheduled maturity or that requires the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(f) There shall occur a Servicer Default; or
(g) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) (i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of the Receivable Interest, in each Pool Asset, free and clear of any other Lien or (ii) cease to create with respect to the items described in Section 9.1, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(h) An Event of Bankruptcy shall have occurredoccurred and remain continuing with respect to Seller, LOL, or any event other Originator; or
(i) The 12-month rolling average Sales Based Dilution Ratio for any Cut-Off Date exceeds twelve percent (12%); or
(j) The 12-month rolling average Sales Based Default Ratio for any Cut-Off Date exceeds six percent (6%); or
(k) The monthly Sales Based Default Ratio for any Cut-Off Date exceeds ten percent (10%); or
(l) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(m) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(n) The monthly Sales Based Delinquency Ratio for any Cut-Off Date exceeds ten percent (10%); or
(o) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to LOL or any other Effect shall have occurred Originator, as applicable, whether or circumstance not consecutive, any final judgment against the Seller, LOL or any other Effect shall exist Originator, or any of their respective properties or assets, that, in combination individually or taken together with all other final judgments so undischarged, unsatisfied and unstayed against any other eventssuch Person or Persons or any of their respective assets or properties has caused, circumstances or other Effectshas a reasonable possibility of causing, would reasonably be expected to have or result in a Material Adverse Effect; providedor
(a) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, however(b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, that(c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, (d) LOL shall cease to own at least eighty percent (80%) of the equity interest in Winfield or (e) LOL subject to a Change in Control; or
(q) The Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the case of clauses “(i)” and “(ii)” only, if an inaccuracy in Internal Revenue Code with regard to any of the representations assets of Seller, LOL or any other Originator and warranties such Lien shall not have been stayed or bonded in a manner satisfactory in the sole discretion of the Company, TopCoAdministrator, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts released within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCoDays, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to this Section 9.1(d4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller, LOL or any other Originator and such Lien shall not have been released within five (5) with respect Business Days; or
(r) There shall exist any other event or occurrence that has caused, or could reasonably be anticipated to such inaccuracy cause, a Material Adverse Effect; or
(s) Seller’s net worth is less than $1,000,000 at any time; or
(t) The Credit Agreement described in the definition of “J▇ ▇▇▇▇▇▇ Credit Documents,” or breach if such inaccuracy or breach is cured prior any replacement credit facility acceptable to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement DateAdministrator, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth terminated or shall otherwise cease to be in full force and effect; or
(u) Any Originator elects at any time not to sell or contribute Receivables to Seller in accordance with Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (101.2(b) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Purchase and Sale Agreement.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a Termination Event with respect to the Closingan Originator:
(a) (i) Such Originator shall fail to make any payment or deposit required to be made by the mutual written consent of Buyer it hereunder when due and such failure continues for five (5) consecutive Business Days and the Company;Performance Guarantor fails to make payment to cure such Originator's failure to pay or deposit, or (ii) such Originator or the Performance Guarantor shall fail to perform or observe any term, covenant or agreement required to be performed or observed by it hereunder (other than as referred to in clause (i) of this paragraph (a)) or any other Transaction Document to which it is a party and such failure shall continue for ten (10) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer such Originator or the CompanyPerformance Guarantor in this Agreement, if any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; PROVIDED THAT the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (materiality threshold in the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of such Originator to pay any Indebtedness when due in excess of $25,000,000 in aggregate principal amount; or the default (iwhich has not been cured within the applicable period of grace, if any) by Buyer such Originator in the performance of any term, provision or the Company if a court of competent jurisdiction condition contained in any agreement under which any such Indebtedness was created or other Governmental Authority shall have issued a final and nonappealable Orderis governed, or shall have taken any other action, having the effect of permanently restrainingwhich is to cause, enjoining or otherwise prohibiting to permit the sale holder or holders of the Purchased Units as contemplated hereinsuch Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of such Originator or shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) Any Event of Bankruptcy shall occur with respect to the Performance Guarantor, such Originator or any of the representations and warranties such Originator's Subsidiaries.
(e) A Change of TopCo, the Members, or the Company contained in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy Originator or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);Performance Guarantor.
(ef) by One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $25,000,000, individually or in the aggregate, shall be inaccurate entered against such Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Sources: u.s. Receivables Sale Agreement (Weatherford International Inc /New/)
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the Closingan Originator:
(a) by Such Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer Such Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2 other than Section 4.2(c).
(c) (i) by Such Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of such Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by such Originator in this Agreement, any other actionTransaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect when made or deemed made in any material respect and is not cured within five (5) Business Days following the earlier to occur of (i) notice from Buyer (or the Administrative Agent or any Purchaser, having as its collateral assignee) of such inaccuracy, or (ii) the effect date on which a Responsible Officer of permanently restrainingsuch Originator (or Performance Guarantor, enjoining as the case may be) otherwise becomes aware of such inaccuracy, provided that the materiality threshold in this subsection shall not be applicable with respect to any representation or otherwise prohibiting warranty which itself contains a materiality threshold although the sale five (5) Business Day cure period shall continue to apply.
(e) Any Originator shall default, or the Performance Guarantor or any of its Subsidiaries (other than an Originator) shall default, in the payment when due of any principal or of or interest on any Material Indebtedness; or any event or condition shall occur which results in the acceleration of the Purchased Units maturity of any such Material Indebtedness.
(f) (i) Such Originator, Performance Guarantor or any of their respective Subsidiaries shall generally not pay its debts as contemplated hereinsuch debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against such Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) any Material Adverse Effect shall have occurredsuch Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations actions set forth in the foregoing clauses (i) or (ii) of this subsection (f).
(g) A Change of Control shall occur with respect to such Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $40,000,000, individually or in the aggregate, shall be entered against such Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within judgment shall continue unsatisfied and in effect for ten (10) Business Days after Buyer notifies the Company in writing consecutive days without a stay of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Sources: Receivables Sale Agreement (RPM International Inc/De/)
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 9.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as a “Potential Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyAmortization Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate such Originator under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother Basic Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any representation or warranty made or deemed to be made by any Originator (ior any of its officers) under or in connection with this Agreement or in any other Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the Buyer or the Company Servicer to the Agent shall be untrue or incorrect in any material respect when made and, if a court capable of competent jurisdiction correction, shall not be corrected within thirty (30) days after any Senior Officer of such Originator has knowledge thereof or other Governmental Authority after written notice of such failure shall have issued a final been given by the Agent to the Buyer and nonappealable Orderthe Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any breach described above is cured in the manner provided in Section 4.5, or shall have taken any other action, having by the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition Originator’s making of an Antitrust Restraint indemnification payment under Section 10.1 on account of such breach, in each case in accordance with this Agreement (and as a condition and to the expiration or termination of any applicable waiting period extent permitted under the HSR Act or other applicable Antitrust LawRLSA), such breach shall not constitute an Event of Default;
(d) by Buyer if: (i) any of the representations and warranties of TopCoOriginator shall fail to perform or observe any other term, the Members, covenant or the Company agreement contained in this Agreement shall or any other Basic Document to which it is a party on its part to be inaccurate as performed or observed and such continues unremedied for more than thirty (30) days after any Senior Officer of the Agreement Date, such Originator has knowledge thereof or shall have become inaccurate as after written notice of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement failure shall have been breached such that given by the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent Agent to the Agreement Date or a breach of a covenant by Buyer and the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);Servicer; or
(e) by the Company if: (i) any Event of Buyer’s representations and warranties contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) occur with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)any Originator.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute an “Termination Event”:
(a) by the mutual written consent Seller, the Servicer or the Performance Guarantor shall fail to remit or fail to cause to be remitted to the Agent, any Purchaser Agent or any Purchaser (i) on any day when due any payment, prepayment or deposit of Buyer and any amount to be remitted to reduce the Company;Invested Amount or any portion thereof or (ii) within two (2) Business Days of becoming due, CP Costs, Yield, fees set forth in any Fee Letter or any other Aggregate Unpaids required to be remitted to the Agent, any Purchaser Agent or any Purchaser; or
(b) by either Buyer the Seller or the Company, if Servicer shall fail to deliver any Settlement Report and such failure shall continue for three (3) Business Days after the Closing has not taken place on date when such Settlement Report became due; or before 5:00 p.m. the Servicer shall fail to perform its duties and obligations as Servicer under the terms of this Agreement or any other Transaction Document and such failure remains unremedied for a period of ten (Eastern time10) on March 9, 2021 (the “End Date”); provided, that days after either (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale any Responsible Officer of the Purchased Units by the End Date results from, Servicer becomes aware thereof or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted written notice thereof to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units such Person by the End Date results fromAgent, or is caused by, a material breach by the Company, TopCo, any Purchaser Agent or any Member of any of its representations, warranties, covenants or agreements contained hereinPurchaser;
(c) (i) any representation, warranty, certification or statement made by Buyer the Seller, the Servicer or the Company if a court of competent jurisdiction Schein under this Agreement or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other actionTransaction Document or in any material agreement, having certificate, report, appendix, schedule or document furnished by the effect of permanently restrainingSeller, enjoining the Servicer or otherwise prohibiting Schein to the sale Agent, any Purchaser Agent or any Purchaser pursuant to or in connection with this Agreement or any other Transaction Document shall prove to have been false or misleading in any material respect as of the Purchased Units as contemplated hereintime made or deemed made (including by omission of material information necessary to make such representation, warranty, certification or statement not misleading); or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained a Change in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent occur with respect to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedPerformance Guarantor; (ii) any Schein shall cease to (A) own 100% of the covenants capital stock of the Company, TopCo, Seller or (B) own (directly or indirectly) 100% of the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedcapital stock of each Originator (other than Schein); or (iii) Schein shall (A) consolidate or merge with or into any Material Adverse Effect shall have occurredother Person other than as permitted under Section 7.4 hereof or (B) sell, lease or otherwise transfer all or substantially all of its assets to any event or other Effect shall have occurred or circumstance or other Effect shall exist thatPerson unless Schein is the survivor of such transaction (unless, in combination with each of clauses (i) through (iii), consented to in writing in advance by Agent in its sole discretion); or
(e) except as otherwise provided in this Section 9.1, the Seller or Schein shall default or fail in the performance or observance of any other eventscovenant, circumstances agreement or other Effects, would reasonably be expected duty applicable to have it contained herein and such default or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within failure shall continue for ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: either (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as Responsible Officer of the Agreement Date, Seller or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; Originator becomes aware thereof or (ii) written notice thereof to such Person by the Agent, any Purchaser Agent or any Purchaser; or
(i) the Seller shall fail to pay any Indebtedness when due and such failure shall continue beyond the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (ii) Schein or any of Buyer’s covenants contained its Consolidated Subsidiaries (other than the Seller) shall fail to pay any Indebtedness in this Agreement excess of $150,000,000 of Schein or any of its Consolidated Subsidiaries, as the case may be, or any interest or premium on such Indebtedness, in either case, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall have been breached continue after the applicable grace period, if any, specified in the agreement or instrument relating to such that Indebtedness; (iii) any other default under any agreement or instrument relating to any such Indebtedness or any other event shall occur and shall continue after the condition set forth applicable grace period, if any, specified in Section 8.2 would such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness unless (A) MUFG is a party to such other agreement or instrument and (B) MUFG and the other requisite lenders thereunder consent to a written waiver of such default or other event in accordance with the terms of such agreement or instrument; or (iv) a final court decision of $75,000,000 or more shall be rendered against Schein or any of its Consolidated Subsidiaries and (A) such amount remains unpaid and (B) such amount remains undischarged for a period of 45 consecutive days during which execution shall not be satisfied; providedeffectively stayed, however, that if an inaccuracy in or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Schein or any of Buyer’s representations and warranties as of a date subsequent its Subsidiary to enforce any such judgment; or
(f) (i) the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing average of the existence of such inaccuracy or breach (the “Buyer Cure Period”)Delinquency Ratios, then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration computed for each of the Buyer Cure Periodimmediately preceding three months, provided Buyer, during shall exceed 14.50%; (ii) the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration average of the Buyer Cure Period).Default Ratios, computed for each of the immediately preceding three months, shall exceed 2.00%;
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) the Transferor, any Seller or the Collection Agent shall fail to make any payment or deposit to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents and such failure shall continue for one (1) Business Day after the Company;date such payment or deposit became due hereunder or thereunder; or
(b) any representation, warranty, certification or statement made by either Buyer the Transferor, the Guarantor or the Companyany Seller in this Agreement, if the Closing has not taken place on any other Transaction Document to which it is a party or before 5:00 p.m. (Eastern time) on March 9in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made, 2021 (the “End Date”); provided, however, that (i) Buyer shall not be permitted if any such representation, warranty, certification or statement relates to terminate this Agreement a Receivable for which the Transferor has paid to the Collection Agent an amount equal to the Outstanding Balance of such Receivable pursuant to this Section 9.1(bsubsection 2.9(a) hereof or if the failure to consummate the sale a breach of the Purchased Units by representation and warranty in Section 3.1, 3.2 or 3.3 has been corrected within the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained time period provided for herein, and (iiin the case of Section 3.1(f) or Section 3.1(s)(i) within 15 days of notice thereof, then the Company breach of such representation or warranty shall not be permitted give rise to terminate a Termination Event under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;subsection (b); or
(c) Failure on the part of any Seller, the Guarantor or the Transferor to observe or perform in any material respect any other term, covenant or agreement in this Agreement or any other Transaction Document within the time period provided for such performance; or
(d) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale failure of the Purchased Units as contemplated hereinTransferor, any Seller, the Guarantor or any Affiliate of the Transferor, the Guarantor or any Seller to pay when due any material amounts due under any agreement to which any such Person is a party and under which any Indebtedness greater than $10,000,000 is governed; or (ii) the material default by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seekthe Transferor, the imposition Guarantor, any Seller or any Affiliate of the Transferor, the Guarantor or any Seller in the performance of any material term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the Transferor, the Guarantor, any Seller or any Affiliate of the Transferor, the Guarantor or any Seller greater than $10,000,000 was created or is governed, regardless of whether such event is an Antitrust Restraint as "event of default" or "default" under any such agreement, which is a condition Material Adverse Effect; or (iii) any Indebtedness owing by the Transferor, the Guarantor, any Seller or any Affiliate of the Transferor, the Guarantor or any Seller greater than $10,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) by reason of a breach or default of same prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof; or
(d) by Buyer if: (i) any Event of Bankruptcy shall occur with respect to the Transferor, or (ii) an Event of Bankruptcy shall occur with respect to the Guarantor or any Seller or Affiliate of the representations and warranties Guarantor or any Seller which, in the reasonable opinion of TopCothe Administrative Agent, is a Material Adverse Effect; or
(f) the Administrative Agent, on behalf of the Funding Agents, the MembersInitial Purchasers and the PARCO APA Banks, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, the Required Currency Hedge, Collections and Proceeds with respect thereto, and any other Transferor Collateral free and clear of any Adverse Claims; or
(g) a Collection Agent Default shall have occurred; or
(h) the Purchase Termination Date shall have occurred under the Receivables Purchase Agreement; or
(i) without obtaining the prior written consent of each Funding Agent, which consents shall be obtained by the Administrative Agent, the Transferor or any Seller or the Company contained Guarantor shall enter into any transaction or merger whereby it is not the surviving entity (other than a merger permitted pursuant to either Section 5.2(d) or Section 5.4(b) hereof); or
(j) there shall have occurred a Material Adverse Effect with respect to the Transferor or any Seller since the Closing Date; or
(k) the institution of any litigation, arbitration proceedings or governmental proceeding involving any Seller or the Transferor or the Receivables which would be reasonably likely to have a Material Adverse Effect; or
(i) the Percentage Factor exceeds the Maximum Percentage Factor unless the Transferor deposits to the Funding Accounts on the next Business Day, for the benefit of the Initial Purchasers and/or the PARCO APA Banks, as applicable, from previously received Collections that have been released to or set aside for the Transferor pursuant to Section 2.5 hereof or other funds available to the Transferor, an amount that brings the Percentage Factor to less than or equal to the Maximum Percentage Factor or increases the balance of the Receivables on the next Business Day so as to reduce the Percentage Factor to less than or equal to 100%; or (ii) the Aggregate Net Investment exceeds the Facility Limit; or
(m) the average Dilution Ratio for the three (3) preceding Settlement Periods exceeds 4.00%; or
(n) the average Aged Receivables Ratio for the three (3) preceding Settlement Periods exceeds 6.50%; or
(o) (i) one or more judgments for the payment of money in this Agreement an aggregate amount in excess of $10,000,000 shall be inaccurate as rendered against a Seller, the Collection Agent, the Guarantor or their Subsidiaries or any combination thereof and the same shall remain undischarged for a period of the Agreement Date, thirty (30) consecutive days during which execution shall not be effectively stayed or shall have become inaccurate as of a date subsequent to the Agreement Date, such extent that the condition set forth in Section 7.1 would not be satisfiedan insurance carrier has accepted a claim for coverage thereto; (ii) any one or more judgments for the payment of money shall be rendered against the covenants of the Company, TopCo, or the Members contained in this Agreement Transferor and shall not have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect action shall have occurredbe legally taken by a judgment creditor to attach or levy upon any assets of the Transferor, a Seller, the Collection Agent, the Guarantor, or their Subsidiaries to enforce any event or other Effect such judgment; or
(p) the Collection Agent shall have occurred or circumstance or other Effect shall exist that, in combination with fail to deliver to the Administrative Agent any other events, circumstances or other Effects, would reasonably report required to be expected to have or result in a Material Adverse Effect; provided, however, that, in delivered by it under the case terms of clauses “the Transaction Documents within one (1) Business Day of (i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to any Settlement Report or Weekly Report, when such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; report was due or (ii) if with respect to any other report, receipt by the Collection Agent of Buyer’s covenants contained in this Agreement written notice from the Administrative Agent that such report is due; or
(q) the imposition of (i) tax liens against the Transferor, (ii) tax liens against any Seller or the Guarantor unless such lien would not have a Material Adverse Effect and has been released within fifteen (15) days of the earlier of (a) the date such Seller or the Guarantor, as applicable, has knowledge of the imposition of such tax lien or (b) the date on which such Seller or the Guarantor, as applicable, receives notice of the imposition of such tax lien, and (iii) ERISA liens; or
(r) there shall have been breached such that occurred a Change in Control; or
(s) the condition Guarantor shall permit the Interest Coverage Ratio to be less than the ratio set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten subsection (10b) Business Days after the Company notifies Buyer in writing of the existence definition of "Interest Coverage Ratio" for such inaccuracy or breach period; or
(t) the “Buyer Cure Period”), then Guarantor shall permit the Company may not terminate this Agreement under this Section 9.1(eLeverage Ratio during any period set forth in subsection (b) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during definition of "Leverage Ratio" to be greater than the Buyer Cure Period, continues ratio set forth in such definition for such period; or
(u) C&A and the Sellers (in the aggregate) fail to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration maintain 100% ownership of the Buyer Cure Period)Transferor.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Collins & Aikman Corp)
Termination Events. This Agreement may be terminated prior to the Closing:
(a) by the mutual written consent of Buyer Purchaser and the CompanySelling Shareholders’ Agent, acting on behalf of the Selling Shareholders;
(b) by either Buyer or the Company, Purchaser if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9September 30, 2021 2006 (the “End Date”); provided) other than as a result of any failure on the part of Purchaser or Parent to comply with or perform any covenant or obligation of Purchaser or Parent, that (i) Buyer shall not be permitted to terminate respectively, set forth in this Agreement pursuant or in any other agreement or instrument delivered to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinSelling Shareholders;
(c) by the Selling Shareholders’ Agent if the Closing has not taken place on or before the End Date (other than as a result of the failure on the part of the Company or any of the Selling Shareholders or the Selling Shareholders’ Agent to comply with or perform any covenant or obligation of the Company or any of the Selling Shareholders or the Company or the Selling Shareholders’ Agent, respectively, set forth in this Agreement or in any other agreement or instrument delivered to Purchaser or Parent);
(d) by Purchaser if (i) any representation or warranty of the Company or any Selling Shareholder contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all materiality qualifications and similar qualifications contained or incorporated directly or indirectly in such representations and warranties shall be disregarded, and (B) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded), or (ii) any of the covenants or obligations of the Company or any Selling Shareholder contained in this Agreement shall have been breached in any material respect such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in or breach of any representation or warranty of the Company or any Selling Shareholder as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by Buyer the Company or any Selling Shareholder is curable by the Company or such Selling Shareholder through the use of commercially reasonable efforts during the 10-day period after Purchaser or Parent notifies the Company and Selling Shareholders’ Agent in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Selling Shareholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(e) by the Selling Shareholders’ Agent if (i) any representation or warranty of Purchaser or Parent contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that the condition set forth in Section 8.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, all materiality qualifications and similar qualifications contained or incorporated directly or indirectly in such representations and warranties shall be disregarded), or (ii) if any of Purchaser’s or Parent’s covenants or obligations contained in this Agreement shall have been breached in any material respect such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in or breach of any representation or warranty of Purchaser or Parent as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by Purchaser or Parent is curable by Purchaser or Parent through the use of commercially reasonable efforts during the 10-day period after the Selling Shareholders’ Agent notifies Purchaser or Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Selling Shareholders’ Agent may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Purchaser or Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(f) by Purchaser if (i) there shall have occurred any Material Adverse Effect, or (ii) any event shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, could reasonably be expected to have or result in a Material Adverse Effect; or
(g) by either Purchaser or the Company Selling Shareholders’ Agent if a court of competent jurisdiction or other Governmental Authority Body shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Contemplated Transactions.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a “Termination Event”:
(a) the SPV or any Originator shall fail to make any payment or deposit to be made by the mutual written consent of Buyer it hereunder or under any other Transaction Document when due hereunder or thereunder and the Company;such failure shall continue for two (2) Business Days; or
(b) any representation, warranty, certification or statement made or deemed made by either Buyer the SPV or any Originator in this Agreement, any other Transaction Document to which 71 it is a party or in any other information, report or document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (except any representation or warranty qualified by materiality or by reference to a material adverse effect, which shall prove to have been incorrect in any respect) when made or confirmed and such circumstance shall remain uncured for thirty (30) days after the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that earlier to occur of (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if receipt of notice thereof from any Managing Agent, any Investor or the failure to consummate the sale of the Purchased Units by the End Date results from, Agent or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units actual knowledge thereof by the End Date results froma Responsible Officer; provided that no such representation, warranty, or certification hereunder shall be deemed to be incorrect or violated to the extent any affected Receivable is caused by, subject to a material breach by Deemed Collection and all required amounts with respect to such Receivable have been deposited into a Blocked Account or the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Collection Account; or
(c) the SPV or any Originator (i) by Buyer shall fail to perform or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken observe in any material respect any other actionterm, having the effect of permanently restraining, enjoining covenant or otherwise prohibiting the sale of the Purchased Units as contemplated herein; agreement contained in this Agreement on its part to be performed or observed and any such failure remains unremedied for 10 days or (ii) by Buyer if shall fail to perform a Governmental Authority provides covenant listed in Section 6.1(a)(iv) and such failure remains unremedied for 30 days after written notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition thereof has been given to the expiration SPV or termination of any applicable waiting period under Originator by the HSR Act or other applicable Antitrust Law;Agent; or
(d) by Buyer if: (i) any Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent occur with respect to the Agreement DateSPV, such that the condition set forth in Section 7.1 would not be satisfied; (ii) ▇▇▇▇▇, Inc., any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredOriginator, or any event or other Effect shall have occurred or circumstance or other Effect shall exist thatMaterial Subsidiary.
(e) the Agent, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any on behalf of the representations and warranties of the CompanySecured Parties, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or shall for any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten reason (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) other than as a result of such inaccuracy or breach prior to the expiration actions of the Member Cure Period, provided the Company, TopCo, Agent or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration any of the Member Cure Period);
(eother Secured Parties) by fail or cease to have a valid and enforceable perfected first priority ownership or security interest in the Company if: (i) Affected Assets, free and clear of any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach Adverse Claim (it being understood that the Company may forgoing shall not terminate this Agreement apply to any Receivable subject to a Deemed Collection and all required amounts with respect to which have been deposited into a Blocked Account or the Collection Account); or
(f) a Servicer Default shall have occurred and be continuing; or
(g) the Net Investment (as determined after giving effect to all distributions pursuant to this Section 9.1(eAgreement on such date) plus the Required Reserves shall exceed the Net Pool Balance for one (1) Business Day; or
(h) the Three-Month Days Sales Outstanding is greater than 55; or
(i) the Two-Month Dilution Ratio is greater than 5.00%; or
(j) the Three-Month Default Ratio is greater than 1.50%; or
(k) the Three-Month Delinquency Ratio is greater than 4.50%; or
(l) [Reserved]; or
(m) failure of the SPV or any Originator to pay when due any amounts due under any agreement to which any such Person is a party and under which any Indebtedness greater than $18,600 in the case of the SPV, or $100,000,000 (or such other amount as may from time to time be set forth in each Senior Credit Agreement), in the case of any Originator; or the default by the SPV or any Originator in the performance of any term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the SPV or any Originator greater than such respective amounts was created or is governed, regardless of whether such event is an “event of default” or “default” under any such agreement if the effect of such default is to cause, or to permit the holder of such Indebtedness to cause, such Indebtedness to become due and payable prior to its stated maturity; or any Indebtedness owing by the SPV or any Originator greater than such respective amounts 72 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof; or
(n) the SPV is not Solvent and each Originator ceases selling Receivables to the SPV under the First Tier Agreement; or
(o) there shall be a Change of Control; or
(p) any Person shall institute steps to terminate any Pension Plan if the assets of such Pension Plan are insufficient to satisfy all of its benefit liabilities (as determined under Title IV of ERISA), or a contribution failure occurs with respect to any Pension Plan which is sufficient to give rise to a lien under Section 303(k) of ERISA if as of the date thereof or any subsequent date, the sum of each of ▇▇▇▇▇, Inc.’s and its Subsidiaries’ various liabilities as a result of such inaccuracy events listed in this clause exceeds $100,000,000 (or breach if such inaccuracy other amount as may from time to time be set forth in each Senior Credit Agreement) in the aggregate; or
(q) any material provision of this Agreement or breach any other Transaction Document to which an Originator, the Servicer or the SPV is cured prior a party shall cease to be in full force and effect or such Originator, the Servicer or the SPV shall so state in writing; or
(r) there is entered against any Originator or any Subsidiary thereof (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $100,000,000 (or such other amount as may from time to time be set forth in each Senior Credit Agreement) (to the expiration extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the Buyer Cure Periodpotential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of ten (10) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent Morningstar shall fail (i) to make any payment or deposit of Buyer any amount consisting of principal required hereunder when due, or (ii) to make any payment or deposit of any other amount required hereunder when due and the Company;such failure shall AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT continue for two (2) consecutive Business Days or (iii) to perform or observe any term, covenant or agreement set forth in Section 4.2 hereunder or (iv) to perform or observe any term, covenant or agreement set forth in Section 4.1(a) (iv) or (c) (second sentence only) hereunder (other than as referred to in clauses (i), (ii) or (iii) of this paragraph (a)) or in any other Transaction Document to which it is a party and such failure shall continue for thirty (30) consecutive days or (v) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clauses (i), (ii), (iii) or (iv) of this paragraph (a) or any other Transaction Document to which it is a party and such failure shall continue for five (5) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer Morningstar in this Agreement, any other Transaction Document to which it is a party or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of Morningstar to pay any Indebtedness when due in excess of $50,000,000; or the default by Morningstar in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of Morningstar shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority Morningstar shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against Morningstar seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) Morningstar shall take any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties actions set forth in the foregoing clauses (i) or (ii) of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten this subsection (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”d), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by the Company if: (i) any A Change of Buyer’s representations and warranties contained in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) occur with respect to any Morningstar.
(f) One or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against Morningstar on claims not covered by insurance or as to which the insurance carrier has AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT denied its responsibility, and such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a Termination Event with respect to the Closingan Originator:
(a) by the mutual written consent of Buyer Such Originator shall fail to make any payment or deposit required hereunder when due and the Company;such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer such Originator in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; PROVIDED THAT the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromany representation or warranty which itself contains a materiality threshold and PROVIDED FURTHER, that any misrepresentation or is caused by, certification for which Buyer has actually received a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company Purchase Price Credit from such Originator shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, constitute a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Termination Event hereunder.
(c) Such Originator shall breach any covenant contained in Section 4.1(b)(i) which is not cured within three (3) Business Days, or such Originator shall breach any covenant contained in Section 4.2(c) or 4.2(e), which is not cured within thirty (30) days, or such Originator shall breach any covenant contained in Section 4.2(a), (b) or (d).
(d) Such Originator shall breach, fail to perform or observe any covenant contained in any Section of this Agreement (which is not covered by another subsection, paragraph or clause of this Section 5.1) or of any other Transaction Document to which it is a party which is not remedied within thirty (30) days after written notice from Buyer (or, at any time while the Loan Agreement remains in effect, Administrator).
(e) Failure of such Originator or any of its Subsidiaries to pay any of its Material Debts when due; or the default by such Originator or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which such Material Debt was created or is governed, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Material Debt to cause such Material Debt to become due prior to its stated maturity; or any Material Debt of such Originator or any of its Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as a result of the sale of an asset securing such Material Debt) prior to the stated maturity thereof.
(i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority Such Originator shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against such Originator seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) such Originator shall take any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if of this subsection (f).
(g) A Change of Control shall occur.
(h) Such Originator or any of Buyer’s covenants contained its Subsidiaries shall fail within 30 days to pay, bond or otherwise discharge any judgment or order for the payment of money in this Agreement excess of $5,000,000, which is not stayed on appeal or otherwise being appropriately contested in good faith.
(i) The First Step Note shall have been breached such that the condition set forth be assigned, pledged or otherwise transferred to any Person in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing violation of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)last section thereof.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (Choicepoint Inc)
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events ("TERMINATION EVENTS") shall occur:
(a) Servicer (if Wackenhut) shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in CLAUSE (II) next following) and such failure shall remain unremedied for five Business Days or (ii) Servicer (if Wackenhut) or the Transferor (if not Servicer) shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Buyer the Transferor, Servicer or the Companyany Originator (or any of their respective officers) under or in connection with this Agreement, any other Agreement Document, or any Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9such condition shall be amenable to remedy, 2021 (the “End Date”); provided, that such condition shall continue unremedied for a period of ten Business Days after (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units written notice thereof by the End Date results from, Agent or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromTransferor, Servicer or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;such Originator has actual knowledge thereof; or
(c) The Transferor, Servicer, Wackenhut or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document, on their respective parts to be performed or observed and any such failure shall remain unremedied for five Business Days after the date on which the Transferor, Servicer, Wackenhut or such Originator knew or should have known of such failure; or
(id) by Buyer A default shall have occurred and be continuing under any instrument or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $100,000 of, or guaranteed by, the Transferor, Servicer, Wackenhut, any Originator or of any Affiliate of either thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the Company if a court giving of competent jurisdiction notice or other Governmental Authority both) would permit acceleration of the maturity of such indebtedness and such default shall have issued continued unremedied, uncured or unwaived for a final period long enough to permit such acceleration and nonappealable Orderany notice of default required to permit acceleration shall have been given; or any default under any agreement or instrument relating to the purchase of receivables of the Transferor, Wackenhut, any Originator or of any Affiliate of either thereof, or shall have taken any other actionevent, having shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of permanently restrainingsuch default is to terminate, enjoining or otherwise prohibiting permit the sale termination of, the commitment of any party to such agreement or instrument to purchase receivables or the right of the Purchased Units as contemplated hereinTransferor to reinvest in receivables the principal amount paid by any party to such agreement or instrument for interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and remained continuing with respect to the Transferor, Servicer, Wackenhut any Originator or any Affiliate of any thereof; or
(f) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by the Transferor to the Agent, prior to the date of execution and delivery of this Agreement is pending against the Transferor, Servicer, Wackenhut, any Originator or any Affiliate of any thereof, or (ii) by Buyer if a Governmental Authority provides notice that it is seekingany material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or intends to seekgovernmental proceedings so disclosed, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatwhich, in the case of clauses “CLAUSE (I) or (II), in the opinion of the Agent, is likely to materially adversely affect the financial position or business of the Transferor, Servicer, any Originator or any Affiliate of any thereof or impair the ability of the Transferor or Servicer to perform its obligations under this Agreement; or
(g) After any Settlement Date, the Aggregate Required Allocations shall exceed the Required Allocations Limit; or
(h) The Losses to Liquidations Ratio exceeds 2%; or
(i)” and “) Three-Month Default Ratio at any time exceeds 6%; or
(ii)” onlyj) Three-Month Dilution Ratio at any time exceeds 2.5%; or
(k) There shall have occurred any event which materially adversely affects the collectibility of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of the Transferor, if an inaccuracy any Originator or Servicer to collect Pool Receivables or the ability of the Transferor or Servicer to perform hereunder or the warranty in SECTION 6.1(N) shall not be true at any time; or
(l) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the representations and warranties assets of the CompanyTransferor, TopCoServicer, the Seller, any Originator or any Affiliate and such lien shall not have been released within 30 days, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement DatePension Benefit Guaranty Corporation shall, or shall have become inaccurate as indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if Employee Retirement Income Security Act of 1974 with regard to any of Buyer’s covenants contained in this Agreement the assets of the Transferor, Servicer, the Seller or any Originator; or
(m) A Purchase and Sale Termination Event shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedoccurred; providedor
(n) The Wackenhut Family shall at any time, howeverdirectly or indirectly, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing control less than 33 1/3% of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration voting securities of the Buyer Cure PeriodTransferor, provided Buyerthe Seller, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy Servicer or breach any Originator; or
(it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(eo) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration The Agent on behalf of the Buyer Cure Period)Purchaser and the Bank Investors, fail for any reason to have a perfected first priority security interest as described in SECTION 9.1; or
(p) The Aggregate Required Allocations shall at any time exceed the Required Allocations Limit.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Wackenhut Corp)
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a Termination Event with respect to the Closingan Originator:
(a) by the mutual written consent Such Originator shall fail (i) to make any payment or deposit required hereunder when due and such failure continues for one (1) Business Day, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for five (5) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer such Originator in this Agreement, any other Transaction Document or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of such Originator or Performance Guarantor to pay any Indebtedness when due in excess of $5,000,000; or the default by such Originator or Performance Guarantor in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of such Originator or Performance Guarantor shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) (i) by Buyer Such Originator, Performance Guarantor or the Company if a court any of competent jurisdiction or other Governmental Authority their respective Subsidiaries shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against such Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) any Material Adverse Effect shall have occurredsuch Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties actions set forth in the foregoing clauses (i) or (ii) of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten this subsection (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”d), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by the Company if: (i) any A Change of Buyer’s representations and warranties contained in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) occur with respect to Performance Guarantor or such inaccuracy Originator shall cease to be owned directly or breach if indirectly by Performance Guarantor.
(f) One or more final judgments for the payment of money in an amount in excess of $5,000,000, individually or in the aggregate, shall be entered against such inaccuracy Originator or breach Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility or as to which such Originator or Performance Guarantor is cured prior not otherwise indemnified pursuant to terms acceptable to Buyer (or its assigns), and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(g) The Originators shall fail to provide, or cause to be provided, on or before April 30, 2003, the expiration of the revised Credit and Collection Policy in form and substance satisfactory to Buyer Cure Period(and its assigns).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closing:following events (each, a “Termination Event”) shall occur (regardless of the reason therefor):
(a) by the mutual written consent Seller shall fail to make any payment of Buyer any monetary Seller Obligation when due and payable and the Company;same shall remain unremedied for one (1) Business Day or more; or
(b) by either Buyer the Seller, any Originator, any Transferor, BMPI, the Parent or the CompanyServicer shall fail or neglect to perform, if the Closing has not taken place on keep or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate observe any covenant or other provision of this Agreement pursuant to or the other Related Documents (other than any provision embodied in or covered by any other clause of this Section 9.1(b8.01) if and the failure same shall remain unremedied for ten (10) Business Days or more following the earlier to consummate the sale occur of an Authorized Officer of the Purchased Units by Seller becoming aware of such breach and the End Date results from, or is caused by, a material breach by Buyer Seller’s receipt of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;written notice thereof; or
(c) (i) by Buyer any Originator, the Seller, any Transferor BMPI, or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken Parent any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinParent’s other Subsidiaries shall fail to make any principal or interest payment with respect to any of its Debts which is in an aggregate principal amount in excess of $100,000,000 when due, and the same shall remain unremedied after any applicable grace period with respect thereto; or (ii) by Buyer if a Governmental Authority provides notice that it is seekingdefault or breach or other occurrence shall occur under any agreement, document or intends instrument to seekwhich an Originator, the imposition Seller, any Transferor, the Parent or any of the Parent’s other Subsidiaries is a party or by which it or its property is bound (other than a Related Document) which relates to a Debt which is in an Antitrust Restraint as a condition aggregate principal amount in excess of $100,000,000, which event has not been waived or shall remain unremedied within the applicable grace period with respect thereto, and the effect of such default, breach or occurrence is to cause or to permit the expiration holder or termination of any applicable waiting period under the HSR Act holders then to cause such Debt to become or other applicable Antitrust Law;be declared due prior to their stated maturity; or
(d) by Buyer if: a case or proceeding shall have been commenced against any Originator, any Transferor, the Seller, BMPI or the Parent seeking a decree or order in respect of any such Person under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any of the representations and warranties of TopCo, the Members, such Person or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) for any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence substantial part of such inaccuracy or breach (the “Member Cure Period”)Person’s assets, then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if ordering the winding up or liquidation of the affairs of any of Buyer’s covenants contained such Person, and, so long as the Seller is not a debtor in this Agreement shall have been breached any such that the condition set forth in Section 8.2 would not be satisfiedcase or proceedings, such case or proceeding continues for 60 days unless dismissed or discharged; provided, however, that such 60-day period shall be deemed terminated immediately if an inaccuracy in any (x) a decree or order is entered by a court of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) competent jurisdiction with respect to such inaccuracy a case or breach if such inaccuracy proceeding described in this subsection (d) or breach is cured prior (y) any of the events described in Section 8.01(e) shall have occurred; or
(e) any Originator, the Seller, the Parent, BMPI or any Transferor shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the expiration institution of any proceedings under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or similar law or to the filing of any petition thereunder or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person’s assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate or limited liability company, as applicable, action in furtherance of any of the Buyer Cure Period).foregoing; or
(f) any Originator, the Seller, BMPI or the Parent or any Transferor (i) generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) is not Solvent; or
Appears in 1 contract
Sources: Receivables Purchase Agreement (Univision Communications Inc)
Termination Events. This Agreement In addition to any other remedies which may be terminated available to the Underwriters in respect of any default, act or failure to act or non-compliance with the terms of this Agreement, any Underwriter shall be entitled, at its option, to terminate and cancel, without any liability on such Underwriter’s part, all of its obligations under this Agreement to purchase the Purchased Shares and, if applicable, the Additional Shares, by giving written notice to the Corporation at any time at or prior to the ClosingClosing Time, if:
(a) the due diligence investigations performed by the mutual written consent Underwriters or their representatives reveal any material information or fact, which, in the sole opinion of Buyer and the CompanyUnderwriters (or any of them), is materially adverse to the Corporation or its business, or materially adversely affects the price or value of the Offered Shares;
(b) by either Buyer there is a material change or a change in a material fact or new material fact shall arise, or there should be discovered any previously undisclosed material fact required to be disclosed in the Preliminary Prospectus or the CompanyFinal Prospectus or any amendment thereto, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); providedin each case, that (i) Buyer shall not has or would be permitted expected to terminate this Agreement pursuant to this Section 9.1(b) if have, in the failure to consummate the sale sole opinion of the Purchased Units by the End Date results fromUnderwriters (or any of them), or is caused byacting reasonably, a material breach by Buyer of any of its representations, warranties, covenants significant adverse change or agreements contained herein, and (ii) effect on the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale business or affairs of the Purchased Units by Corporation or on the End Date results from, market price or is caused by, a material breach by the Company, TopCo, or any Member value of any the securities of its representations, warranties, covenants or agreements contained hereinthe Corporation;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any inquiry, action, suit, investigation or other proceeding (whether formal or informal) is commenced, announced or threatened or any order made by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality including, without limitation, the TSX or any securities regulatory authority (except for any inquiry, action, suit, proceeding, investigation or order based upon activities of the representations Underwriters and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as not upon activities of the Agreement Date, Corporation) or shall have become inaccurate as any law or regulation is enacted or changed which in the sole opinion of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; Underwriters (ii) or any of them), acting reasonably, operates to prevent or materially restrict the covenants trading of the Company, TopCo, common shares of the Corporation or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; materially and adversely affects or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably might be expected to have materially and adversely affect the market price or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any value of the representations and warranties common shares of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedCorporation; or (ii) if there should develop, occur or come into effect or existence any event, action, state, condition or major financial occurrence of Buyer’s covenants national or international consequence or any law or regulation which in the sole opinion of the Underwriters, acting reasonably, seriously adversely affects, or involves, or will seriously adversely affect, or involve, the financial markets or the business, operations or affairs of the Corporation and its subsidiaries taken as a whole;
(d) the Corporation is in breach of a material term, condition or covenant contained in this Agreement or any representation or warranty given by the Corporation in this Agreement becomes or is false; or
(e) both the Co-Lead Underwriters and the Corporation agree in writing to terminate this Agreement. The Underwriters shall have been breached make commercially reasonable best efforts to give notice to the Corporation (in writing or by other means) of the occurrence of any of the events referred to in this Section 13, provided that neither the giving nor the failure to give such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy notice shall in any of Buyer’s representations and warranties as of a date subsequent to way affect the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing entitlement of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate Underwriters to exercise this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach right at any time prior to or at the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Closing Date.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events (each a “Termination Event”) shall occur:
(a) Any SPV Entity, Performance Guarantor, any Originator or any Servicer shall fail to make when due any payment or deposit required to be made by the mutual written consent of Buyer it under this Agreement or any other Transaction Document, and the Companysuch failure, shall continue unremedied for two (2) Business Days;
(b) any representation or warranty made or deemed made by either Buyer any SPV Entity, Performance Guarantor, any Originator or the Company, if the Closing has not taken place on any Servicer (or before 5:00 p.m. (Eastern timeany of their respective officers) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate under or in connection with this Agreement or any other Transaction Document or any information or report delivered by any SPV Entity, Performance Guarantor, any Originator or any Servicer pursuant to this Section 9.1(b) if the failure Agreement or any other Transaction Document, shall prove to consummate the sale of the Purchased Units by the End Date results from, have been incorrect or is caused by, a untrue in any material breach by Buyer of any of its representations, warranties, covenants respect when made or agreements contained hereindeemed made or delivered, and such incorrect or untrue representation, warranty, information or report, solely to the extent capable of cure, shall continue unremedied for thirty (ii30) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereindays;
(c) (i) by Buyer any SPV Entity, Performance Guarantor, any Originator or the Company if a court of competent jurisdiction any Servicer shall fail to perform or other Governmental Authority shall have issued a final and nonappealable Orderobserve any term, covenant or shall have taken agreement under this Agreement or any other actionTransaction Document (other than any such failure which would constitute a Termination Event under another clause set forth in this definition of “Termination Event”), having the effect of permanently restrainingand such failure, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition solely to the expiration or termination extent capable of any applicable waiting period under the HSR Act or other applicable Antitrust Lawcure, shall continue unremedied for thirty (30) days;
(d) by Buyer if: this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Sold Assets or Pledged Collateral, free and clear of any Adverse Claim;
(e) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any SPV Entity, Performance Guarantor, any Originator or any Servicer or their respective debts, or of a substantial part of their respective assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for any SPV Entity, Performance Guarantor, any Originator or any Servicer or for a substantial part of their respective assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(f) any SPV Entity, Performance Guarantor, any Originator or any Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in clause (e) of this Section 9.01, (iii) apply for or consent to the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors, or the board of managers (or similar governing body) of any SPV Entity, Performance Guarantor, any Originator or any Servicer (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to above in this clause (f) or clause (e) of this Section 9.01;
(g) a Capital Coverage Deficit shall occur, and shall not have been cured within three (3) Business Days following any SPV Entity’s or any Servicer’s actual knowledge or receipt of notice thereof;
(h) any Seller, Performance Guarantor, any Originator or any Servicer fails to make any payment (whether of principal or interest) in respect of any Material Indebtedness when and as the same shall become due and payable, after giving effect to any period of grace specified for such payment in the agreement or instrument governing such Material Indebtedness;
(i) any event or condition exists under any Material Indebtedness of the representations any SPV Entity, Performance Guarantor, any Originator or any Servicer that causes such Material Indebtedness to become due prior to its scheduled maturity or any event or condition exists and warranties continues without waiver or remedy for a period of TopCo30 days that enables or permits (with or without the giving of notice, the Memberslapse of time or both) the holder or holders of any such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that no Termination Event shall arise under this clause (i) due to (i) any secured Material Indebtedness becoming due solely as a result of the voluntary sale or transfer of the assets securing such Material Indebtedness or (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof, in each case, so long as such Material Indebtedness is paid or otherwise satisfied as a result thereof within two Business Days of when due;
(j) any of the following shall occur:
(A) the average Default Ratios for any three consecutive Fiscal Months exceeds 3.00%;
(B) the average Delinquency Ratios for any three consecutive Fiscal Months exceeds 18.50%;
(C) the average Dilution Ratios for any three consecutive Fiscal Months exceeds 5.25%; or
(D) the Days’ Sales Outstanding exceeds 50 days;
(k) any SPV Entity shall be required to register as an “investment company” within the meaning of the Investment Company contained Act;
(l) any SPV Entity or any Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect (except to the extent resulting from an act or omission of any Purchaser Party or any of their respective Affiliates), or any of the any SPV Entity, Performance Guarantor, any Originator or any Servicer (or any of their respective Affiliates) shall so state in writing;
(n) a Change in Control shall occur;
(o) Any Servicer shall resign as Servicer other than in accordance with Section 8.01(c);
(p) Any SPV Entity (or, in the case of the Limited Partnership, the general partner thereof) shall fail at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Manager) to have an Independent Manager who satisfies each requirement and qualification specified in this Agreement Agreement’s definition of “Independent Manager”;
(q) either (i) the Internal Revenue Service shall be inaccurate as file notice of a lien pursuant to Section 6323 of the Agreement DateCode with regard to any assets of any SPV Entity, Performance Guarantor, any Originator or any Servicer, or (ii) the PBGC shall have become inaccurate as file notice of a date subsequent lien pursuant to Section 4068 of ERISA, Section 303(k) of ERISA, or 430(k) of the Agreement Date, such that Code with regard to any of the condition set forth in Section 7.1 would not be satisfiedassets of any SPV Entity or any of its ERISA Affiliates;
(r) (i) the occurrence of a Reportable Event; (ii) any the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the covenants Code or Section 307 of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedERISA; or (iii) the existence with respect to any Material Adverse Effect shall have occurredMultiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any SPV Entity or any of its ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any SPV Entity or any of its ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any SPV Entity or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to the Seller or any of its ERISA Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or other Effect shall have occurred condition with respect to a Pension Plan or circumstance a Multiemployer Plan, with respect to each of clause (i) through (ix), that either individually or other Effect shall exist that, in combination with any other events, circumstances or other Effectsthe aggregate, would reasonably be expected to have or result in a Material Adverse Effect;
(s) a Purchase and Sale Termination Event shall occur under any Purchase and Sale Agreement with respect to all applicable remaining Originators; providedor
(t) one or more judgments or decrees shall be entered against any SPV Entity, howeverPerformance Guarantor, thatany Originator, in the case or any Servicer, or any Subsidiary of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of foregoing involving in the Company, TopCo, aggregate a liability (not paid or the Members as of a date subsequent to the Agreement Date extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or a breach shall not be vacated, discharged or stayed or bonded pending appeal for any period of a covenant by 30 consecutive days, and the Company, TopCo, aggregate amount of all such judgments equals or any Member is curable by the Company, TopCo, exceeds $50,000,000 (or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) solely with respect to any SPV Entity, $15,325); then, and in any such inaccuracy or breach if such inaccuracy or breach is cured prior event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the expiration Seller (x) declare the Maturity Date to have occurred (in which case the Maturity Date shall be deemed to have occurred), and (y) declare the Aggregate Capital and all other non-contingent Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the Member Cure Period);
giving of notice) described in subsection (e) or (f) of this Section 9.01 with respect to the Seller, the Maturity Date shall occur and the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC, PPSA and under other Applicable Law, which rights and remedies shall be cumulative. Without limiting the foregoing, the Administrative Agent may obtain from any court of competent jurisdiction an order for the appointment of an interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or of any or all of its Pledged Collateral and, by instrument in writing appoint one or more interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or any or all of its Pledged Collateral with such rights, powers and authority as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such interim receiver, receiver, manager or receiver and manager from time to time. To the extent permitted by Applicable Law, any such interim receiver, receiver, manager or receiver and manager appointed by the Company if: Administrative Agent shall (ifor purposes relating to responsibility for acts or omissions) be considered to be the agent of the Canadian Guarantor and not of the Administrative Agent or any of Buyer’s representations the other Secured Parties. Any proceeds from liquidation of the Sold Assets and warranties contained in this Agreement Pledged Collateral shall be inaccurate as applied in the order of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition priority set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)3.01.
Appears in 1 contract
Termination Events. This Agreement may If any of the following events (each, a “Termination Event”) shall occur and be terminated prior to the Closingcontinuing:
(a) by the mutual Borrower shall default in the payment of any amount required to be made under the terms of this Agreement and such failure continues unremedied for a period of three (3) Business Days after the due date set forth herein for such payment, or if no due date is specified, such failure continues for a period of twenty (20) days after written consent of Buyer and the Company;request for such payment has been made; or
(b) by either Buyer or an Overcollateralization Shortfall exists and continues unremedied for a period of three (3) Business Days; or
(c) the Companyamount of Advances Outstanding shall exceed the Availability, if the Closing has not taken place on or before 5:00 p.m. for more than three (Eastern time3) on March 9, 2021 Business Days; or
(the “End Date”)d) [Reserved]; provided, that or
(e) a Required Equity Shortfall exists and continues unremedied for a period of three (3) Business Days; or
(i) Buyer the Borrower shall not be permitted fail to terminate perform or observe in any material respect any other covenant or other agreement of the Borrower set forth in this Agreement pursuant and any other Transaction Document to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromwhich it is a party, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company Originator shall fail to perform or observe in any material respect any term, covenant or agreement of such Originator set forth in any other Transaction Document to which it is a party, in each case when such failure continues unremedied for more than twenty (20) days after written notice thereof shall have been given by the Deal Agent or any Secured Party to such Person; or
(g) any representation or warranty made or deemed made hereunder shall prove to be incorrect in any material respect as of the time when the same shall have been made, and such incorrect representation or warranty shall not be permitted to terminate this Agreement pursuant to this Section 9.1(bhave been eliminated or otherwise cured within a period of twenty (20) if the failure to consummate the sale of the Purchased Units days after written notice thereof shall have been given by the End Date results from, or is caused by, a material breach by the Company, TopCo, Deal Agent or any Member of any of its representations, warranties, covenants or agreements contained herein;Secured Party to the Borrower; or
(ch) an Insolvency Event shall occur with respect to the Borrower; or
(i) by Buyer a Servicer Termination Event occurs; or
(j) any Change-in-Control of the Borrower or Originator occurs; or
(k) the Borrower or the Company if Originator defaults in making any payment required to be made under any material agreement for borrowed money to which either is a party and such default is not cured within the relevant cure period; or
(l) the Deal Agent, as agent for the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(i) a final judgment for the payment of money in excess of $5,000,000 shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction or other Governmental Authority and, if such judgment relates to the Originator, the Originator shall have issued a final and nonappealable Ordereither: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or shall have taken any other action, having (2) perfected a timely appeal of such judgment and caused the effect of permanently restraining, enjoining execution thereof to be stayed (by supersedes or otherwise prohibiting during the sale pendency of the Purchased Units as contemplated herein; such appeal or (ii) by Buyer if a Governmental Authority provides notice that it is seekingthe Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $1,000,000 or $100,000, respectively, in settlement of any litigation; or
(n) the Borrower or the Servicer agrees or consents to, or intends otherwise permits to seekoccur, the imposition any amendment, modification, change, supplement or recession of an Antitrust Restraint as a condition or to the expiration Credit and Collection Policy in whole or termination in part that could have a material adverse effect upon the Loans or interest of any applicable waiting period under Investor, without the HSR Act or other applicable Antitrust Law;prior written consent of the Deal Agent; or
(do) by Buyer if: on any day, either (i) any the aggregate Hedge Notional Amount is less than the product of the representations Hedge Percentage on such day and warranties the Hedge Amount on that day, or (ii) any Hedge Transaction fails to meet the requirements set forth in subsection 5.2(a) and such failure continues unremedied for a period of TopCoten (10) consecutive days; or
(p) the Aggregate Net ▇▇▇▇ to Market Amount exceeds $10,000,000 for two consecutive Determination Dates; or
(q) on any Determination Date, the MembersRolling Three-Month Portfolio Yield does not equal or exceed Minimum Portfolio Yield and such failure continues for a period of fifteen (15) consecutive days; or
(r) the Rolling Three-Month Default Ratio shall exceed 5.0%; or
(s) the Rolling Three-Month Charged-Off Ratio shall exceed 2.5%; or
(t) any two of (i) ▇▇▇▇▇ ▇▇▇▇▇▇, (ii) ▇▇▇ ▇▇▇▇▇▇, and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(u) the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or any rules, regulations or orders issued by the SEC thereunder; or
(v) the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances by the Borrower made by the Investors, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any other person or entity of the Company contained 1940 Act or the rules and regulations promulgated thereunder; or
(w) a Material Adverse Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(x) a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the legal conclusions made in the true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; then, and in any such event, the Deal Agent may, by notice to the Borrower, declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and all Obligations owing by the Borrower under this Agreement shall be inaccurate as of the Agreement Date, or shall have accelerated and become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effectimmediately due and payable; provided, however, that, in the case event that the Termination Event described in subsection 9.1(h) herein has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of clauses “(i)” and “(ii)” onlyany kind, if an inaccuracy in all of which are hereby expressly waived by the Borrower. Upon any such declaration or automatic occurrence of the representations Termination Date, no Advances or Swingline Advances will be made, and warranties the Deal Agent and the Secured Parties shall have, in addition to all other rights and remedies under this Agreement or otherwise, all rights and remedies provided under the UCC of each applicable jurisdiction and other Applicable Laws, including the right to sell the Collateral, which rights and remedies shall be cumulative. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Company, TopCo, or Deal Agent and the Members as Secured Parties otherwise available under any provision of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result by operation of such inaccuracy law, at equity or breach prior to the expiration otherwise, each of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)which are expressly preserved.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) IPFS shall fail (i) to make any payment or deposit (A) of principal when required to be made by the mutual written consent it hereunder or (B) any other obligation or amount not covered by clause (A) when required hereunder and such failure shall continue for three (3) consecutive Business Days, or (ii) to perform or observe any term, covenant or agreement contained in Section 4.1(a)(i), (ii), (iii), (iv), (v) or (vii)(B), Section 4.1(f)(i), or Section 4.1(j) and such failure shall continue for thirty (30) consecutive days, or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) or (ii) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for ten (10) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer IPFS in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of IPFS to pay any Indebtedness when due in excess of $200,000,000 (i) by Buyer “Material Indebtedness”); or the Company if a court default by IPFS in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any Material Indebtedness was created or is governed, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinwhich is to cause such Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of IPFS shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) any An Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy IPFS or breach if such inaccuracy or breach is cured prior to any Subsidiary of IPFS which meets the expiration definition of “Material Subsidiary” defined in the Member Cure Period);Credit and Security Agreement.
(e) by A Change of Control shall occur.
(f) One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $200,000,000, individually or in the aggregate, shall be inaccurate entered against IPFS on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(g) An Amortization Event specified in Section 9.1(p) of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Credit and Security Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)occurred.
Appears in 1 contract
Sources: Receivables Sale and Contribution Agreement (International Paper Co /New/)
Termination Events. This Agreement may The following events shall be terminated prior to the Closing"Termination Events" hereunder:
(ai) Servicer (if Feed or any Affiliate is the Servicer) or any Sub-Servicer shall fail to perform or observe any material term, covenant or agreement that is an obligation of Servicer hereunder (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for more than seven (7) Business Days, or (ii) Seller or Servicer (if Feed or its Affiliate is Servicer) shall fail to make any payment of Capital or Yield within two (2) Business Days, or, in the case of any other payment or deposit required to be made by the mutual written consent it hereunder, within five (5) Business Days, of Buyer when first due and the Company;payable hereunder; or
(b) Any representation or warranty made or deemed to be made by either Buyer Seller, Feed, individually or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of in its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCocapacity as Servicer, or any Member of other Originator, under or in connection with this Agreement, any of its representationsother Transaction Document, warrantiesor any Servicer Report, covenants Weekly Report or agreements contained herein;other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made and, but only to the extent such breached representation or warranty is susceptible to cure, shall remain uncured for ten (10) Business Days; or
(c) Seller, Feed (other than in its capacity as Servicer) or any other Originator shall fail to perform or observe any other term, covenant or agreement contained in (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedAgreement; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; other Transaction Document or (iii) any Material Adverse Effect other material agreement with, or other undertaking in favor of, CoBank or any of the Purchasers, to be performed or observed on the part of Seller, Feed or such Originator (as the case may be) and any such failure shall remain unremedied for fifteen (15) Business Days after written notice thereof shall have occurredbeen given by the Administrator, CoBank or such Purchaser, as the case may be, to the applicable non-performing party; or
(d) Seller or any Originator shall fail to make any payment in respect of any Indebtedness having an aggregate principal (or equivalent) amount in excess of $10,000,000, when and as the same shall become due and payable (giving effect to any applicable grace or cure periods); or
(e) Any event or condition occurs that results in any Indebtedness of Seller or any Originator having an aggregate principal (or equivalent) amount in excess of $10,000,000 becoming due prior to its scheduled maturity or that requires the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(f) There shall occur a Servicer Default; or
(g) This Agreement or any Purchase or any Reinvestment pursuant to this Agreement shall for any reason (other than pursuant to the terms hereof) (i) cease to create, or the Receivable Interest shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest, to the extent of the Receivable Interest, in each Pool Asset, free and clear of any other Lien or (ii) cease to create with respect to the items described in Section 9.1, or the interest of the Administrator (for the benefit of the Purchasers) with respect to such items shall cease to be, a valid and enforceable first-priority perfected security interest, free and clear of any other Lien; or
(h) An Event of Bankruptcy shall have occurred and remain continuing with respect to Seller, Feed, or any event other Originator; or
(i) The 12-month rolling average Sales Based Dilution Ratio for any CutOff Date exceeds ten percent (10%); or
(j) The 12-month rolling average Sales Based Default Ratio for any CutOff Date exceeds six percent (6%); or
(k) The monthly Sales Based Default Ratio for any Cut-Off Date exceeds ten percent (10%); or
(l) On any Settlement Date or any Purchase Date, after giving effect to the payments or distributions made (or, in the case of any Payment Date, after giving pro forma effect to such payments or distributions to be made as of the next succeeding Settlement Date, as specified in Section 3.1(c)) under Section 3.1(c), the Receivable Interest exceeds the Allocation Limit; or
(m) The 12-month rolling average Sales Based Delinquency Ratio for any Cut-Off Date is greater than six percent (6%); or
(n) The monthly Sales Based Delinquency Ratio for any Cut-Off Date exceeds ten percent (10%); or
(o) There shall remain in force, undischarged, unsatisfied and unstayed, for more than five (5) Business Days with respect to the Seller or thirty (30) days with respect to Feed or any other Effect shall have occurred Originator, as applicable, whether or circumstance not consecutive, any final judgment against the Seller, Feed or any other Effect shall exist Originator, or any of their respective properties or assets, that, in combination individually or taken together with all other final judgments so undischarged, unsatisfied and unstayed against any other eventssuch Person or Persons or any of their respective assets or properties has caused, circumstances or other Effectshas a reasonable possibility of causing, would reasonably be expected to have or result in a Material Adverse Effect; providedor
(a) LOL shall cease to own at least eighty percent (80%) of the equity interests in Feed, however(b) Feed shall cease to own at least eighty percent (80%) of the equity interests in Purina, that(c) Feed shall cease to own one hundred percent (100%) of the equity interests in Seller, or (d) LOL is subject to a Change in Control; or
(q) The Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the case of clauses “(i)” and “(ii)” only, if an inaccuracy in Internal Revenue Code with regard to any of the representations assets of Seller or Feed and warranties such Lien shall not have been stayed or bonded in a manner satisfactory in the sole discretion of the Company, TopCoAdministrator, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts released within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCoDays, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration 4068 of the Member Cure Period);Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or Feed and such Lien shall not have been released within five (5) Business Days; or
(er) by the Company if: There shall exist any other event or occurrence that has caused, or could reasonably be anticipated to cause, a Material Adverse Effect; or
(is) Seller's net worth is less than $1,000,000 at any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as time; or
(t) Either of the Agreement DateCredit Agreements described in the definition of "JP Morgan Credit Documents," or any replacement credit facility acce▇▇▇▇▇▇ ▇▇ the Administrator, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth terminated or shall otherwise cease to be in full force and effect; or
(u) Any Originator elects at any time not to sell or contribute Receivables to Seller in accordance with Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (101.2(b) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Purchase and Sale Agreement.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events (each, a "Termination Event") shall occur:
(a) Any failure by the mutual written consent Originator or the Servicer to make any payment, transfer or deposit required to be paid by it under the terms of Buyer and the Company;this Agreement; or
(b) Any representation or warranty made or deemed to be made by either Buyer the Originator (or the Company, if the Closing has not taken place on any of its officers) under or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate in connection with this Agreement or other information or report delivered pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of other Facility Document shall prove to have been false or incorrect in any of its representations, warranties, covenants or agreements contained herein;material respect when made; or
(c) (i) by Buyer The Originator or the Company if a court of competent jurisdiction Servicer shall fail to perform or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken observe any other actionterm, having covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for up to two Business Days following the effect earlier of permanently restraining, enjoining notice or otherwise prohibiting such time as the sale of the Purchased Units as contemplated hereinOriginator knows or should have known thereof; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) The Originator shall fail to pay any principal of or interest on any Debt having a principal amount of $1,000,000 or greater, when the same becomes due and payable (whether by Buyer if: (ischeduled 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 Debt; or any other default under any agreement or instrument relating to any such Debt of the representations Originator or any other event, shall occur and warranties shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of TopCosuch default or event is to accelerate, or to permit the acceleration of, the Members, maturity of such Debt; or the Company contained in this Agreement any such Debt shall be inaccurate as declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(e) Any Purchase or acquisition by the Buyer of Purchased Assets shall for any reason, except to the Agreement Dateextent permitted by the terms hereof, cease to create a valid and perfected first priority ownership or security interest in each Purchased Loan, the Related Security and Collections with respect thereto or shall have become inaccurate as for any reason cease to evidence the transfer to the Buyer of a date subsequent to valid and perfected first priority ownership or security interest in Purchased Loans, the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse EffectRelated Security and Collections; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of such failure relates to a date subsequent Loan which is retransferred to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”)Originator pursuant to Section 8.02 hereof, then Buyer may such failure shall not terminate this Agreement give rise to an Event of Termination under this Section 9.1(dsubsection (e); or
(f) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) An Insolvency Event shall occur with respect to such inaccuracy the Originator or breach if such inaccuracy or breach is cured prior to the expiration any of the Member Cure Period)its Subsidiaries;
(eg) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement There shall have been breached such that any material adverse change in the financial condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing operations of the existence of such inaccuracy Originator or breach (the “Buyer Cure Period”), then Originator and its Subsidiaries on a consolidated basis or there shall have occurred any event which materially adversely affects the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration collectibility of the Buyer Cure Period, provided Buyer, during Purchased Loans or there shall have occurred any other event which materially adversely affects the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration ability of the Buyer Cure Period).Originator to collect Purchased Loans or the ability of the Originator or Servicer to perform their respective obligations hereunder; or
Appears in 1 contract
Sources: Loan Sale and Contribution Agreement (Sirrom Capital Corp)
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing (each, a "Termination Event") shall occur:
(ai) the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement and, except as otherwise provided herein, such failure shall continue for 30 days after knowledge or notice thereof, (ii) the Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall continue unremedied for two Business Days or (iii) Werner shall resign as Servicer in contravention of Section 2.1(c) hereof and no successor Servicer reasonably acceptable to the Agent shall have been appointed by the mutual written consent of Buyer and the CompanyAgent or Werner (or any affiliate thereof) shall fail to transfer to ▇▇▇ ▇uccessor Servicer when required any rights pursuant to this Agreement;
(b) any representation or warranty made or deemed made by either Buyer the Servicer under or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate in connection with this Agreement or any other Transaction Document to which it is a party, or any information or report delivered by the Servicer pursuant to this Section 9.1(b) if the failure Agreement or any other Transaction Document to consummate the sale of the Purchased Units by the End Date results fromwhich it is a party, shall prove to have been incorrect or is caused by, a untrue in any material breach by Buyer of any of its representations, warranties, covenants respect when made or agreements contained hereindeemed made or delivered, and (ii) shall remain incorrect or untrue for 30 days after notice to the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale Servicer of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinsuch inaccuracy;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority Servicer shall have issued a final and nonappealable Ordergenerally not pay its debts as such debts become due, or shall have taken admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other actionsimilar official for it or for any substantial part of its property and, having in the effect case of permanently restrainingany such proceeding instituted against it (but not instituted by it), enjoining either such proceeding shall remain undismissed or otherwise prohibiting the sale unstayed for a period of 60 days, or any of the Purchased Units as contemplated hereinactions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends the Servicer shall take any corporate action to seek, authorize any of the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawactions set forth above in this paragraph;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained a Change in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedoccur; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);or
(e) an Event of Default under the Financing Agreement shall have occurred and be continuing; then, in each case, the Agent shall have the right, by notice to the Company if: Servicer, to terminate the rights of the Servicer to collect the Accounts hereunder. Following such termination, the Agent shall have the right to (i) any of Buyer’s representations and warranties contained appoint itself or another entity as successor Servicer hereunder in this Agreement shall be inaccurate as of the Agreement Dateaccordance with Section 2.1, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any direct the Customers to remit all amounts payable in respect of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent Accounts directly to the Agreement Date Agent or its designee or into a breach of a covenant by Buyer is curable by Buyer through Depository Account and (iii) take any and all steps in the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing name of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration Purchaser and on behalf of the Buyer Cure PeriodPurchaser necessary or desirable, provided Buyer, during in the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration determination of the Buyer Cure Period)Agent and in accordance with Section 8.3 of the Financing Agreement, to collect any and all amounts or portions thereof due in respect of any and all Accounts, Related Rights and the related Contracts.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) any representation or warranty made by the mutual written consent Transferor in any Transaction Document shall prove to have been incorrect when made, and as a result of which the interests of the Agent, the Buyer or any other Owner hereunder are materially and the Companyadversely affected;
(b) any failure by either Buyer the Transferor to make any payment, transfer or the Company, if the Closing has not taken place deposit on or before 5:00 p.m. (Eastern time) on March 9the date such payment, 2021 (transfer or deposit is required to be made under the “End Date”); provided, that (i) Buyer shall not be permitted to terminate terms of this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale which continues unremedied for a period of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinfive Business Days;
(c) (i) by Buyer failure on the part of the Transferor duly to observe or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken perform in any material respect any other action, having the effect of permanently restraining, enjoining covenants or otherwise prohibiting the sale agreements of the Purchased Units as contemplated herein; or (ii) by Buyer if Transferor set forth in any Transaction Document and which continues unremedied for a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition period of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law10 days;
(d) a failure by Buyer if: the Transferor, CompuCredit or any direct Affiliate thereof to perform any term, provision or condition contained in any agreement to which any such Person is a party and under which any Indebtedness owing by the Transferor, CompuCredit or any direct Affiliate thereof greater than $5,000,000 was created or is governed, regardless of whether such failure constitutes an "event of default" or "default" under any such agreement; or any Indebtedness owing by the Transferor, CompuCredit or any direct affiliate thereof (iother than Indebtedness of CompuCredit of the type described in clause (vi) of the definition of "Indebtedness") greater than $5,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof;
(e) any Event of Bankruptcy shall occur with respect to the Transferor, CAC, the Account Owner, the Servicer or the Sub-Servicer;
(f) the Agent, on behalf of the representations Buyer and warranties of TopCothe other Owners, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of Receivables;
(g) a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect Servicer Default shall have occurred, and as a result of which the interests of the Agent, the Buyer or any event or other Effect Owner are materially and adversely affected;
(h) there shall have occurred any material adverse change in the operations of the Transferor, Servicer or circumstance Sub-Servicer, or other Effect shall exist that, in combination with any other eventsevent, circumstances which materially adversely affects the Transferor's, Servicer's or Sub-Servicer's ability either to collect upon the Receivables or to perform its obligations under the Transaction Documents;
(a) the Liquidity Provider or the Credit Support Provider shall have given notice that an event of default has occurred and is continuing under any of its respective agreements with Buyer; or (b) the Transferor, CAC or any Account Owner is unable for any reason to transfer Receivables in accordance with the provisions of the applicable Transaction Documents; or (c) the Transferor, CAC or any Account Owner for any reason ceases to transfer the Receivables in accordance with the provisions of the applicable Transaction Documents; or (d) a regulatory, tax or accounting body has ordered that the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby be terminated or, as a result of any other Effectsevent or circumstance, would the activities of the Buyer, any Liquidity Provider or Credit Support Provider contemplated hereby may reasonably be expected to cause the Buyer, such Liquidity Provider or such Credit Support Provider, the Person then acting as the administrator or the manager for the Buyer, or any of their respective Affiliates, as applicable, to suffer materially adverse regulatory, accounting or tax consequences.
(j) the Subordinate Percentage is less than the Required Subordinate Percentage;
(k) CB&T or CAC shall default in the performance of any payment or undertaking to be performed or observed by it under the CB&T Agreement, Affinity Card Agreement or the Facilities Management Agreement and such default shall continue beyond any applicable grace period and shall have a material adverse effect on the interests of the Agent, the Buyer or result any other Owner;
(l) for so long as the Affinity Card Agreement is in a Material Adverse Effect; providedeffect, howeverthe Letter of Credit (as such term is defined in the Affinity Card Agreement) maintained by CompuCredit in favor of CB&T pursuant to Section 3.3 of the Affinity Card Agreement shall, thatwithout the consent of CB&T, be terminated, revoked or reduced, or shall be drawn on, and such termination, revocation or reduction shall not have been remedied within five days and, in the case of clauses “a drawing, such drawing shall not have been reimbursed within five days;
(i)” m) if CB&T is acting as Servicer or Sub-Servicer with respect to the Receivables or the Accounts in any material respect, the rating of the senior unsecured debt of CB&T is downgraded below Baa2 by Moody's or BBB by Standard & Poor's, respectively;
(n) CompuCredit Corporation shall at any time fail to own more than 50% of the outstanding voting stock of CompuCredit Acquisition Corporation or CompuCredit Acquisition Corporation shall at any time fail to own more than 50% of the outstanding voting stock of the Transferor;
(o) any of Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by CompuCredit, its Affiliates or agents, and “such individual's position shall not be filled within 60 days of such individual's termination of employment or status as an agent by an individual approved by the Agent;
(ii)” only, if an inaccuracy in p) the Payment Rate for any of the representations months ending after the Closing Date set forth below shall be equal to or less than the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Months 7 through 9 2.3% Months 10 through 15 2.5% Months 16 through 20 2.7% Months 21 through 25 2.9% Month 26 and warranties thereafter 3.0%;
(q) the Charge-Off Rate for any of the Companymonths ending after the Closing Date set forth below shall equal or exceed the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Month 7 42% Month 8 41% Month 9 40% Month 10 39% Month 11 38%;
(r) the Three-Month Average Charge-Off Rate for any of the months ending after the Closing Date set forth below shall equal or exceed the percentage set forth opposite such month below: Month After Closing Date Percentage ------------------------ ---------- Months 12 through 17 38% Months 18 through 24 35% Month 25 and thereafter 28%;
(s) the Transferor consolidates or merges with or into any other Person, TopCo, except that the Transferor may merge with or into another Person so long as (a) the Members as of a date subsequent to surviving entity is either the Agreement Date Transferor or a breach Subsidiary of a covenant by the CompanyCompuCredit, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10b) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) no Termination Event would occur as a result of such inaccuracy or breach prior to merger and (c) where a Subsidiary of CompuCredit is the expiration surviving entity, such Subsidiary assumes in writing all obligations of the Member Cure Period, provided Transferor under the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Transaction Documents;
(et) by CompuCredit consolidates or merges with or into any other Person, except that CompuCredit may merge with or into another Person so long as (a) the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of surviving entity is either the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date Servicer or a breach Subsidiary of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten CompuCredit, (10b) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) no Termination Event would occur as a result of such inaccuracy merger and (c) where a Subsidiary of CompuCredit is the surviving entity, such Subsidiary assumes in writing all obligations of CompuCredit under the Transaction Documents;
(u) any failure by CompuCredit to perform any term, provision or breach prior to the expiration condition of the Buyer Cure PeriodGuaranty and, provided Buyerin the case of its failure to make a payment under the Guaranty, during such payment equals or exceeds $500,000 individually or in the Buyer Cure Period, continues to exercise reasonable efforts to cure aggregate; or
(v) an Event of Default (as such inaccuracy or breach (it being understood that term is defined in the Company may not terminate this Agreement pursuant to this Purchase Agreement) under Section 9.1(e7.1(a) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Purchase Agreement shall have occurred and be continuing if at such time the Senior Amounts (as such term is defined in the Purchase Agreement) have been paid in full and the Termination Date has not occurred.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Compucredit Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more ------------------ of the Closingfollowing events shall constitute a Termination Event:
(a) by The Seller shall fail (i) to make any payment or deposit required under this Agreement or any of the mutual written consent of Buyer other Transaction Documents on or within one Business Day after the date when required to be made, or (ii) to perform or observe any term, covenant or agreement hereunder and such failure shall remain unremedied for five Business Days after notice from the Company;Agent.
(b) Any representation, warranty, certification or statement made by either Buyer the Seller, the Servicer or the CompanyOriginator in this Agreement, if the Closing has not taken place on any other Transaction Document or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and shall have a Material Adverse Effect.
(i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale Failure of the Purchased Units Originator to pay any Indebtedness in excess of $10,000,000 when due; or the default by the End Date results fromOriginator in the performance of any term, provision or condition contained in any agreement under which any Indebtedness in excess of $10,000,000 was created or is governed, the effect of which is to cause, or is caused byto permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any Indebtedness in excess of $10,000,000 of the Originator shall be declared to be due and payable or required to be prepaid (other than by a material breach regularly scheduled payment) prior to the date of maturity thereof; or
(ii) except as provided in clause (a)(i) above: failure of the Seller to pay any Indebtedness when due; or the default by Buyer the Seller in the performance of any term, provision or condition contained in any agreement under which any Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its representationsstated maturity; or any Indebtedness of the Seller shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) A Servicer Default shall occur.
(e) The average of the Delinquency Ratios for the most recent three (3) consecutive calendar months shall exceed 4.5%.
(f) The Charge-Off Ratio for the most recent twelve (12) consecutive calendar months shall exceed 8.5%.
(g) A Change of Control shall occur.
(i) The Originator shall fail to perform or observe any term, warrantiescovenant or agreement contained in any other Transaction Document and such failure shall continue unremedied beyond any applicable grace or cure period provided therein, covenants or agreements contained herein, and (ii) the Company Originator shall not be permitted for any reason cease to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromtransfer, or is caused by, a material breach by cease to have the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining legal capacity or otherwise prohibiting the sale be incapable of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seekingtransferring, or intends to seek, the imposition of an Antitrust Restraint as a condition Receivables to the expiration or termination of any applicable waiting period Seller, as purchaser under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCoSale Agreement, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect "EVENT OF DEFAULT" shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in occur under the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);Sale Agreement.
(e) by the Company if: (i) The aggregate Receivable Interests hereunder shall at any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)time exceed 100%.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent Any Originator shall fail (i) to make any payment or deposit required hereunder when due, (ii) to observe or perform any covenant set forth in Section 4.2 and such failure shall continue for two (2) consecutive Business Days or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clauses (i) and (ii) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for fifteen (15) consecutive Business Days.
(b) Any material representation, warranty, certification or statement made by either Buyer any Originator in this Agreement, any other Transaction Document or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of any Originator or any of its respective Subsidiaries to pay any Indebtedness when due, which individually or together with other such Indebtedness as to which any such failures exists has an aggregate outstanding principal amount in excess of $50,000,000 (hereinafter, “Material Indebtedness”); or the default by any Originator or any of its respective Subsidiaries in the performance of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of any Originator or any of its respective Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) Any Originator or any of its respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by Buyer or against any Originator or any of its respective Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the Company if appointment of a court of competent jurisdiction receiver, trustee or other Governmental Authority shall have issued a final and nonappealable Order, similar official for it or shall have taken any other action, having the effect substantial part of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; its property or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, any Originator or intends any of its respective Subsidiaries shall take any corporate action to seek, authorize any of the imposition of an Antitrust Restraint as a condition to actions set forth in the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: foregoing clause (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; subsection (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(id)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by One or more final judgments for the Company if: (i) payment of money in any amount of $50,000,000 or more individually or in the aggregate, shall be entered against any Originator or any of Buyer’s representations their respective Subsidiaries on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and warranties contained such judgment shall continue unsatisfied and in this Agreement shall be inaccurate as effect for forty-five (45) consecutive days without a stay of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Any Seller Party shall fail (i) to make any payment or deposit required hereunder when due, and such failure continues for two (2) Business Days, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a) and paragraph 9.1(e)) or in any other Transaction Document and such failure shall continue for five (5) consecutive Business Days after the earlier to occur of (A) discovery of such failure by a Seller Party or (B) notice of such failure from the mutual written consent of Buyer and the Company;Agent or any Purchaser.
(b) Any representation, warranty or certification made by either Buyer any Seller Party in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made which is not corrected within 5 Business Days after the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that earliest to occur of (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale discovery of the Purchased Units such error by the End Date results froma Seller Party, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) notice of such error from the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Agent or any Member of any of its representations, warranties, covenants or agreements contained herein;Purchaser.
(c) Failure of Seller to pay any Indebtedness when due (after taking into account any applicable period of grace) in excess of $10,000 or the failure of any Originator to pay Indebtedness when due (after taking into account any applicable period of grace) in excess of $25,000,000, which failure has not been cured or waived; or the default by Seller or any Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of Seller or any Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer Seller or the Company if a court of competent jurisdiction or other Governmental Authority Servicer shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that Seller or Servicer seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedits property; or (iii) any Material Adverse Effect proceeding shall have occurredbe instituted and remain unstayed and undismissed in a court of appropriate jurisdiction for a period of 60 days against Seller or Servicer seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any event law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other Effect similar official for it or any substantial part of its property; or (iv) Seller or Servicer shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, authorize any of the actions set forth in the case of foregoing clauses “(i)” and “, (ii) or (iii) of this subsection (d)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by Seller shall fail to comply with the Company if: terms of Section 2.6 hereof.
(i) As at the end of the month of November, December or January of any calendar year, the average of Buyer’s representations the Delinquency Ratios as at the end of such month and warranties contained in this Agreement the two preceding months shall exceed 25%, (ii) as at the end of any other calendar month, the average of the Delinquency Ratios as at the end of such month and the two preceding months shall exceed 23.5%, (iii) as at the end of any calendar month, the average of the Default Ratios as at the end of such month and the two preceding months shall exceed 11%, (iv) as at the end of any calendar month, the average of the Dilution Ratios as at the end of such month and the two preceding months shall exceed 3.00%, or (v) as at the end of any calendar month, the average of the Day Sales Outstanding as at the end of such month and the two preceding months shall exceed 80.0.
(g) A Change of Control shall occur.
(i) One or more final judgments for the payment of money shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; entered against Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $25,000,000, individually or in the aggregate, shall be entered against the Servicer or, if any the Performance Undertaking has been delivered, Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Upon the occurrence of any of the following events (each, a "Termination Event") and whether any such Termination Event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, the non-defaulting party (as the case may be, the "Aggrieved Party") may elect to terminate this Agreement may be terminated prior to the Closingin accordance with Section 24 hereof:
(a) a party (the "Defaulting Party") fails to comply with the applicable Standard of Conduct and such failure continues unremedied for a period of twenty (20) days (or such longer period as determined by the mutual Aggrieved Party) after the date on which written consent notice of Buyer such failure describing the nature of such failure and requesting the Company;same to be remedied shall have been given to the Defaulting Party by the Aggrieved Party; or
(b) by either Buyer the Defaulting Party fails to meet the Targeted Service Levels for two (2) consecutive fiscal quarters; or
(c) the Defaulting Party fails to observe or the Companyto perform in any material respect any of its other covenants or agreements set forth herein, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that which failure shall (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if materially and adversely, in the failure to consummate the sale reasonable judgment of the Purchased Units by Aggrieved Party, affect the End Date results from, rights of the Aggrieved Party hereunder or is caused by, a material breach by Buyer of under any of its representations, warranties, covenants or agreements contained herein, Lease and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(bcontinue unremedied for a period of thirty (30) if the failure to consummate the sale of the Purchased Units days (or such longer period as determined by the End Date results from, or is caused by, a material breach Aggrieved Party) after the date on which written notice of such failure requesting the same to be remedied shall have been given to the Defaulting Party by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinAggrieved Party; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) the Defaulting Party fails generally to pay its debts as they become due; or its dissolution, termination of existence, or discontinuance of business; or the insolvency, business failure or appointment of a receiver of any part of such party's property, or an assignment by Buyer if: (i) any such party for the benefit of the representations and warranties of TopCo, the Memberscreditors, or the Company contained in this Agreement shall be inaccurate as commencement by or against it of the Agreement Dateany proceedings under any bankruptcy, reorganization or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatarrangement laws and, in the case of clauses “any involuntary proceedings, the continuance of such proceedings unstayed and in effect for sixty (i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo60) days, or the Members as assumption of a date subsequent to the Agreement Date custody or a breach control by any court of a covenant by the Company, TopCo, or competent jurisdiction over any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing substantial portion of the existence of such inaccuracy Defaulting Party's property, and the same remaining in force unstayed or breach unterminated for sixty (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d60) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);days; or
(e) by the Company if: Defaulting Party (i) enters into any transaction of Buyer’s representations merger or consolidation or any commitment with respect thereto, unless it is the surviving corporation, after giving effect to such merger or consolidation, its tangible net worth is equal to or greater than that which existed immediately prior to the merger or consolidation and warranties contained in this Agreement shall be inaccurate as the ratio of its debt to tangible net worth is not greater than that which existed immediately prior to the merger or consolidation and the person with whom it merges or consolidates is not a competitor of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedother party; or (ii) if any sells, transfers, or otherwise disposes of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedall or substantially all of its assets; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).
Appears in 1 contract
Sources: Operating Agreement (Pitney Bowes Office Systems Inc)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual Such Originator shall fail to make any payment or deposit required hereunder when due, or to perform or observe any term, covenant or agreement hereunder or under any other Transaction Document to which it is a party and such failure shall continue for 30 days after written consent notice of Buyer and the Company;such failure is given.
(b) Any representation, warranty, certification or statement made by either Buyer such Originator in this Agreement, any other Transaction Document to which it is a party, or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of any Originator to pay any Indebtedness when due in excess of $25,000,000 (i) by Buyer “Material Debt”); or the Company if a court default by any Originator in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any Material Debt was created or is governed, or shall have taken any other action, having the effect of permanently restrainingwhich is to cause, enjoining or otherwise prohibiting to permit the sale holder or holders of the Purchased Units as contemplated hereinsuch Material Debt to cause, such Indebtedness to become due prior to its stated maturity; or any Material Debt of any Originator shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) any An Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy any Originator or breach if such inaccuracy or breach is cured prior to the expiration any of the Member Cure Period);its Material Subsidiaries.
(e) A Change of Control shall occur.
(f) One or more final judgments for the payment of money in an amount in excess of $25,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the Company if: insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (i30) consecutive days without a stay of execution.
(g) The PBGC or Internal Revenue Service shall file any notice of lien on any of Buyer’s representations the Receivables or the Related Security and warranties contained in this Agreement such lien shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts released within ten seven (107) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)days.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Seller shall fail (i) to (A) turn over any Collections or Deemed Collection required to be turned over by it hereunder when due or (B) make any payment required to be made by it hereunder when due, and (solely in the mutual written consent case of Buyer this clause (B) such failure continues for five (5) consecutive Business Days after Seller has actual knowledge of such failure or through the exercise of reasonable business diligence, should have known of such failure, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) and such failure shall continue for thirty (30) consecutive days after Seller has actual knowledge of such failure or through the Company;exercise of reasonable business diligence, should have known of such failure.
(b) Any representation, warranty, certification or statement made by either Buyer Seller in this Agreement, any other Transaction Document or the Company, if the Closing has not taken place in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any respect on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale as of the Purchased Units by the End Date results from, date made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereindeemed made;
(c) Seller or any of its Subsidiaries shall (i) by Buyer default in making any payment of principal of any Indebtedness (including any Contingent Obligation) on the scheduled or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinoriginal due date with respect thereto; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination default in making any payment of any applicable waiting interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, which such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedIndebtedness was created; or (iii) default in the observance or performance of any Material Adverse Effect shall have occurredother agreement or condition related to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or other Effect shall have occurred condition is to cause, or circumstance to permit the holder or other Effect shall exist thatbeneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, in combination with any other eventsthe giving of notice if required, circumstances such Indebtedness to become due prior to its stated maturity or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, (in the case of clauses “any such Indebtedness constituting a Contingent Obligation) to become payable; provided that a default, event or condition described in clause (i)” and “, (ii) or (iii) of this paragraph (c) shall not at any time constitute a Termination Event unless, at such time, one or more defaults, events or conditions of the type described in clauses (i)” only, if (ii) or (iii) of this paragraph (c) shall have occurred and be continuing with respect to Indebtedness the aggregate outstanding principal amount of which exceeds in the aggregate $50,000,000 for Seller and its Subsidiaries.
(d) (i) Seller or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an inaccuracy order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee or other similar official for it or any substantial part of its assets, or Seller or any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Seller or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against Seller or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Seller or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the representations and warranties acts set forth in clause (i), (ii) or (iii) above; or (v) Seller or any of the Company, TopCoits Subsidiaries shall generally not, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCoshall be unable to, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company shall admit in writing of the existence of such inaccuracy or breach (the “Member Cure Period”)its inability to, then Buyer may not terminate this Agreement under this Section 9.1(d) pay its debts as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)they become due;
(e) by the Company if: A Change of Control shall occur.
(if) One or more judgments or decrees shall be entered against Seller or any of Buyer’s representations its Subsidiaries involving in the aggregate for Seller and warranties contained in this Agreement its Subsidiaries a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $75,000,000 or more, and all such judgements or decrees shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that vacated, discharged, stayed or bonded pending appeal within 30 days from the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)entry thereof.
Appears in 1 contract
Termination Events. This Agreement may Each of the following events shall be terminated prior to the Closinga "Termination Event" hereunder:
(ai) Servicer (if API) shall fail to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for three Business Days or (ii) either Servicer (if API) or any Seller shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Buyer any Seller or the Company, if the Closing has not taken place on Servicer (or before 5:00 p.m. (Eastern timeany of their respective officers) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate under or in connection with this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of Periodic Report or Settlement Statement or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any of its representations, warranties, covenants or agreements contained herein;material respect when made; or
(c) Any Seller shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for ten Business Days after written notice thereof shall have been given by the Agent to Sellers' Representative; or
(d) A default shall have occurred and be continuing under or any instrument, contract, indenture or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $2,000,000 of, or guaranteed by, any Seller or any Affiliate of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or
(e) The average of the Delinquency Ratios for any three successive Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall have occurred and remained continuing with respect to any Seller or any Affiliate of any thereof; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Buyer or Sellers' Representative to the Company if a court Agent and Purchasers prior to the date of competent jurisdiction or other Governmental Authority shall have issued a final execution and nonappealable Order, or shall have taken delivery of this Agreement is pending against any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; Seller or (ii) by Buyer if a Governmental Authority provides notice that it is seekingany material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or intends to seekgovernmental proceedings so disclosed, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatwhich, in the case of clauses “clause (i)” and “) or (ii)” only, if an inaccuracy in the reasonable opinion of the Agent is likely to materially adversely affect the financial position or business of any Seller or impair the ability of any Seller to perform its obligations under this Agreement; or
(h) Aggregate Participation Amounts shall exceed the Participation Amounts Limit, or that portion of the Aggregate Purchasers' Investments that is funded in Approved Currencies other than U.S. Dollars exceeds the Foreign Currency Limit, or the aggregate Unpaid Balance of Receivables denominated in any Approved Currency is less than the sum of the Purchasers' Investments of each Undivided Interest funded in such Approved Currency; or
(i) The average of the Default Ratios for any three successive Month End Dates exceeds 7.25%; or
(j) There shall have occurred any event which materially adversely affects the collectability of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of any Seller or Servicer to collect Pool Receivables or the ability of any Seller or Servicer to perform hereunder or the warranty in Section 6.01(i)(y) shall not be true at any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the representations assets of any Seller and warranties of the Company, TopCosuch lien shall not have been released and such lien shall not have been released within 8 Business Days, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement DatePension Benefit Guaranty Corporation shall, or shall have become inaccurate as indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of any Seller and such lien shall not have been released within 8 Business Days; or
(l) One Person, or a group of Persons acting in concert that are unacceptable to the Agreement DateAgent or the Majority Purchasers obtain, such that in one or more transactions, control of more than 50% of the condition set forth in Section 8.1 would not be satisfiedissued and outstanding shares of capital stock of API having the power to elect a majority of directors of API; or any Seller other than API ceases to be a wholly-owned Subsidiary of API; or
(iim) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing The average of the existence of such inaccuracy or breach Dilution Ratios for any three successive Month End Dates exceeds 8%; or
(the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(en) as a result of such inaccuracy or breach prior to the expiration The average of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Net Charge-Off Ratios for any three successive Month End Dates exceeds 2%.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closing:following events (each, a "Termination Event") shall occur (regardless of the reason therefor):
(a) the Seller shall (i) fail to make any payment of any Seller Secured Obligation when due and payable and the same shall remain unremedied for one (1) Business Day (or two (2) Business Days in the case of any violation of Section 6.1(a)(ii)'s requirement that proceeds of Transferred Receivables and Seller Collateral be deposited to a Lockbox Account within one (1) Business Day after receipt thereof) or more, or (ii) fail or neglect to perform, keep or observe any other provision of this Agreement or the other Related Documents (other than any provision embodied in or covered by any other clause of this Section 9.1) and the same shall remain unremedied for two (2) Business Days or more after written notice thereof shall have been given by the mutual written consent of Buyer and Administrative Agent to the Company;Seller; or
(b) by either Buyer a default or breach shall occur under any other agreement, document or instrument to which the Parent, the Originator, Holding or the CompanySeller is a party or by which any such Person or its property is bound, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that and (i) Buyer shall such default or breach has not be permitted been waived in writing by the holder or holders of such Debt or cured to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale satisfaction of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, Administrative Agent and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(bsuch default or breach (A) if involves the failure to consummate make any payment when due in respect of any Debt (other than the sale Seller Secured Obligations) of the Purchased Units by the End Date results from, any such Person due and owing to GE Capital or is caused by, a material breach by the Company, TopCo, or any Member of any of its representationsaffiliates, warrantiesor (B) permits any holder of such Debt or a trustee or agent to cause Debt or a portion thereof which, covenants except with respect to the Seller, is in excess of a principal amount of $10,000,000 in the aggregate to become due prior to its stated maturity or agreements contained herein;prior to its regularly scheduled dates of payment, or (C) causes Debt or a portion thereof which, except with respect to the Seller, is in excess of a principal amount of $10,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment; or
(c) a case or proceeding shall have been commenced against the Seller or any member of the Parent Group seeking a decree or order in respect of any such Person (i) under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person; or
(d) the Seller or any member of the Parent Group shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by Buyer a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate or limited partnership action, as applicable, in furtherance of any of the foregoing; or
(e) (i) the Originator, Holding, the Seller or the Company if a court of competent jurisdiction Servicer generally does not pay its debts as such debts become due or other Governmental Authority shall have issued a final and nonappealable Orderadmits in writing its inability to, or shall have taken any other actionis generally unable to, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units pay its Debts as contemplated herein; such Debts become due or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination fair market value of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any member of the representations and warranties Parent Group's liabilities exceeds the fair market value of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedits assets; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).or
Appears in 1 contract
Sources: Receivables Purchase and Servicing Agreement (Advancepcs)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual Such Originator shall fail to make any payment or deposit required hereunder when due, or to perform or observe any term, covenant or agreement hereunder orunder any other Transaction Document to which it is a party and such failure shall continue for 30 days after written consent notice of Buyer and the Company;such failure is given.
(b) Any representation, warranty, certification or statement made by either Buyer or the Companysuch Originator in this Agreement, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted any other Transaction Document to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromwhich it is a party, or is caused by, in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the materiality threshold in the preceding clause shallnot be applicable with respect to any representation or warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) Failure of any Originator to pay any Indebtedness when due in excess of $25,000,000 (i) by Buyer "Material Debt"); or the Company if a court default by any Originator in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any Material Debt was created or isgoverned, or shall have taken any other action, having the effect of permanently restrainingwhich is to cause, enjoining or otherwise prohibiting to permit the sale holder or holders of the Purchased Units as contemplated hereinsuch Material Debt to cause, such Indebtedness to become due prior to its stated maturity; or any Material Debt of any Originator shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) any An Event of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement Bankruptcy shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) occur with respect to such inaccuracy any Originator or breach if such inaccuracy or breach is cured prior to the expiration any of the Member Cure Period);its Material Subsidiaries.
(e) A Change of Control shall occur.
(f) One or more final judgments for the payment of money in an amount in excess of $25,000,000, individually or in the aggregate, shall be entered against any Originator on claims not covered by insurance or as to which the Company if: insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (i30) consecutive days without a stay of execution.
(g) The PBGC or Internal Revenue Service shall file any notice of lien on any of Buyer’s representations the Receivables or the Related Security and warranties contained in this Agreement such lien shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts released within ten seven (107) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)days.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Termination Events. This 26.1 The Owner and the Hirer agree that it is a fundamental term and condition of this Agreement may be terminated prior to that none of the Closingfollowing events shall occur during the Hire Period and that the occurrence of any of the following events shall constitute a repudiatory breach of this Agreement by the Hirer:
(a) by if any Relevant Party fails to pay any Rental or other sum payable under the mutual written consent Relevant Documents on its due date or in respect of Buyer and sums payable on demand, fails to pay any other sum payable on demand under the Company;Relevant Documents within five (5) Business Days after demand; or
(b) if any Relevant Party fails or neglects to observe or perform any of the terms and conditions of the Relevant Documents in a way which the Owner regards as material (otherwise than as mentioned in Clause 26.1(a)) and in the case of a failure or non-observance which is capable of remedy such failure or non-observance shall continue unremedied for fourteen days after the Owner becomes aware of it; or
(c) if any Relevant Party shall do or allow to be done or omit to do any act or thing which act or omission in the opinion of the Owner may materially jeopardise any of its rights in relation to the Ship; or
(d) if any statement, representation or warranty made by either Buyer any Relevant Party inducing the Owner to enter into the Relevant Documents or made on the part of any Relevant Party in the Relevant Documents or in any certificate, statement or notice delivered or made pursuant to the Relevant Documents shall be or become incorrect in any respect; or
(e) if any process of execution, diligence or distress shall be levied on executed against or sued out against the Ship or any goods or other property belonging to any Group Company and shall not be discharged within seven days; or
(f) if an order shall be made or a resolution passed for the winding up (other than by way of a members' voluntary winding up for the purpose of a scheme of amalgamation or reconstruction or for any other purpose in any case previously approved by the Owner) of any Group Company, ; or
(g) if any Group Company shall convene a meeting for the Closing has not taken place on purpose of making or before 5:00 p.m. shall make a composition or arrangement with or any assignment or assignation for the benefit of its creditors; or
(Eastern timeh) on March 9, 2021 (if an encumbrancer shall take possession or a receiver or liquidator shall be appointed in respect of whole or any part of the “End Date”)assets or undertaking of any Group Company; provided, that or
(i) Buyer if any Group Company shall be unable to pay its debts as such expression is defined in Section 123 of the Insolvency Act ▇▇▇▇; or
(j) if any indebtedness or obligation of any Group Company (other than an indebtedness or obligation of less than US$500,000) shall become due and payable prior to the specified maturity date thereof or any agreement for the hiring of machinery or plant to a Group Company or any material hire purchase or conditional sale agreement to a Group Company shall be terminated by reason of an event of default thereunder or any indebtedness of a Group Company in connection with any such agreement shall not be permitted paid when due or any Group Company shall not meet its obligations under any guarantee or indemnity when properly called upon to terminate this Agreement pursuant to this Section 9.1(bdo so; or
(k) if the failure Hirer shall cease to consummate be a Subsidiary (directly or indirectly) of Eagle Geophysical Inc. without the sale Owner's prior written approval; or
(l) if any security constituted by any mortgage or charge created by any Group Company including the security constituted by the Account Assignment shall become enforceable and the mortgagee or the chargee shall take steps to enforce the same unless any such security has become illegal or unenforceable in accordance with clause 32; or
(m) if any event or proceedings in any jurisdiction which is or are analogous to any of the Purchased Units by events or proceedings referred to in sub-clauses (e), (f), (g), (h), (i) or (l) of this Clause 26.1 shall occur or be commenced in relation to any Group Company; or
(n) if the End Date results fromHirer, the Surety or is caused by, a material either of the Corporate Guarantors are in breach by Buyer of any other agreement with or obligation in favour of the group of companies of which the Owner forms part ("OWNER GROUP") for a period in excess of any applicable grace period under the terms of such agreement or obligation or (if none) for 14 days; or
(o) if the Hirer, the Surety or either of the Corporate Guarantors dispose of all or a substantial part of their assets otherwise than for full consideration in money or money's worth payable at the time of such disposal and otherwise than to another Group Company, without the prior written consent of the Owner, whether such disposal is effected in one transaction or a series of transactions whether or not related; or
(p) If:
(i) the Hirer, the Surety or either of the Corporate Guarantors or any other Group Company shall at any time reduce to a substantial extent the scale of its representations, warranties, covenants business now carried on by such companies respectively or agreements contained herein, and if there shall be a substantial reduction in the scale on which the businesses now carried on by Group Companies (taken as a whole) are carried on in each case as compared with the scale on which the same is or are carried on at the date hereof; and
(ii) the Company Owner acting reasonably shall not be permitted certify that in its opinion in all the circumstances the risk to terminate this Agreement pursuant to this Section 9.1(bthe Owner in connection with the Relevant Documents has materially increased; or
(q) if after the failure to consummate date hereof and without the sale prior written consent of the Purchased Units by the End Date results from, Owner (such consent not to be unreasonably withheld or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (idelayed) any of either of the representations and warranties of TopCoCorporate Guarantors, the Members, Surety or the Company contained in this Agreement shall be inaccurate as Hirer or of any Subsidiary (directly or indirectly) of the Agreement Date, or shall have become inaccurate as Hirer ceases to be a wholly owned subsidiary of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedEagle Geophysical Inc; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);or
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (iir) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would judgment or order is made against any Group Company and is not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date stayed or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts complied with within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)seven days.
Appears in 1 contract
Termination Events. This Agreement may If any of the following events (each a "Termination Event") shall occur and be terminated prior to the Closingcontinuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder in respect of Capital when due; or any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure shall remain unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer any Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (or, to the Companyextent any such representation or warranty is qualified by materiality or Material Adverse Effect, if such representation or warranty shall prove to have been incorrect in any respect subject only to the Closing has not taken place on materiality or before 5:00 p.m. (Eastern timeMaterial Adverse Effect qualification set forth therein) on March 9, 2021 (the “End Date”)when made or deemed made; provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;or
(c) any Transaction Party shall fail to perform or observe (A) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d), 5.01(j)(iv), 5.01(n) or 5.01(v) of this Agreement or Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(l)(iv) of the Originator Purchase Agreement or (B) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (B), such failure shall remain unremedied for ten (10) days after such Transaction Party has knowledge or receives notice thereof; or
(i) by Buyer any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the Company if a court of competent jurisdiction or other Governmental Authority same shall have issued a final become due and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinpayable; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity, other Effect shall have occurred than at the election of the Originator or circumstance any Subsidiary, or other Effect shall exist that, in combination subject to any applicable grace period, enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any other events, circumstances Material Indebtedness or other Effects, would reasonably be expected any trustee or agent on its or their behalf to have or result in a cause any Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCoIndebtedness to become due, or to require the Members as of a date subsequent to the Agreement Date prepayment, repurchase, redemption or a breach of a covenant by the Companydefeasance thereof, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedits scheduled maturity; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent this clause (d)(ii) shall not apply to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such inaccuracy Indebtedness;
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or breach prior cease to have a valid and perfected first priority security interest in the Receivables and Related Security and Collections with respect thereto or there shall exist any Adverse Claims (except as created in favor of the Seller pursuant to the expiration Originator Purchase Agreement or in favor of the Buyer Cure Period, provided Buyer, during Administrative Agent and the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement Purchasers pursuant to this Section 9.1(eAgreement) on the Receivables or the Related Security or Collections with respect thereto; or
(g) any Change of Control shall occur or the Originator shall cease to such inaccuracy own directly 100% of the issued and outstanding Equity Interests of the Seller; or
(h) there shall have occurred since the Closing Date any event or breach if such inaccuracy condition which has had or breach is cured prior could reasonably be expected to have a material adverse effect on (A) the ability of any Transaction Party to perform its obligations under the Transaction Documents or (B) the collectibility of the Receivables; or
(i) the Receivable Interest Percentage exceeds the Maximum Receivable Interest Percentage unless, within two Business Days of obtaining notice or knowledge thereof, the Seller reduces the Capital from previously received Collections or other funds available to the expiration of Seller so as to reduce the Buyer Cure Period).Receivable Interest Percentage to less than or equal to the Maximum Receivable Interest Percentage; or
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a termination event (hereinafter, a “Termination Event”) under this Forbearance Extension:
(a) the failure of the Borrower to cause PFG’s Obligations to be repaid as and when required by the mutual written consent of Buyer Loan Agreement, it being expressly acknowledged and the Companyagreed that TIME IS OF THE ESSENCE;
(b) the filing of a petition for relief by either Buyer or against Borrower under the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinUnited States Bankruptcy Code;
(c) (i) by Buyer or the Company if a court failure of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderthe Borrower to promptly, punctually, or shall have taken faithfully perform any other actionmaterial term, having the effect condition, or covenant of permanently restraining, enjoining this Forbearance Extension or otherwise prohibiting the sale any of the Purchased Units other documents executed and delivered in connection with this Forbearance Extension (the “Forbearance Extension Documents”) as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice and when due, it being expressly acknowledged and agreed that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust LawTIME IS OF THE ESSENCE;
(d) by Buyer if: the occurrence of any Default or Event of Default (iother than the Continuing Defaults and for the periods specified within said definition) under the Loan Agreement, any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, other Loan Document or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Forbearance Document;
(e) any recital, representation or warranty made herein, in any Forbearance Document, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by or on behalf of Borrower in connection with this Forbearance Extension or any Forbearance Document, shall prove to have been false, incomplete or misleading in any material respect on the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate date as of which it was made;
(f) Borrower making Special Permitted Payments materially in excess of the Agreement Dateamounts notified to PFG in connection with this Forbearance Extension or failing to pay third party costs incurred in connection with the Notified Financing, or shall have become inaccurate as except to the extent of any such costs that are the subject of a date subsequent good faith and reasonable dispute;
(g) Borrower shall fail to provide written notice to PFG evidencing the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; failure or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing abandonment of the existence Notified Financing; or
(h) a material impairment in the perfection or priority of PFG’s security interest in the Collateral or in the value of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) Collateral taken as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)whole occurs.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the ClosingOriginator:
(a) by The Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer The Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2.
(c) (i) by The Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of the Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by the Originator in this Agreement, any other actionTransaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect or misleading when made or deemed made in any material respect, having provided that the effect materiality threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(e) The Originator shall default, or the Performance Guarantor or any of permanently restrainingits Subsidiaries (other than the Originator) shall default, enjoining in the payment when due of any principal or otherwise prohibiting of or interest on any Material Indebtedness or shall fail to observe or perform any other agreement or condition relating to any such Material Indebtedness and such default has not been waived by the sale applicable lenders before the expiration of any applicable grace periods; or any other event or condition shall occur which results in a default under any such Material Indebtedness.
(f) (i) The Originator, Performance Guarantor or any of their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the Purchased Units as contemplated hereinbenefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against the Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, and in the imposition of an Antitrust Restraint as a condition to the expiration or termination case of any applicable waiting such proceeding instituted against (but not instituted by) it, either such proceeding shall remain undismissed or unstayed for a period under the HSR Act of 30 days, or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCoactions sought in such proceeding (including, without limitation, the Members, entry of an order for relief or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as appointment of a date subsequent to the Agreement Datereceiver, such that the condition set forth in Section 7.1 would not be satisfied; (iitrustee or other similar official for it or any substantial part of its property) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; occur or (iii) any Material Adverse Effect shall have occurredthe Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any subsection (f).
(g) A Change of Buyer’s representations and warranties as of a date subsequent to the Agreement Date Control or a breach Credit Agreement Change of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Control shall occur with respect to the Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $15,000,00, individually or in the aggregate, shall be entered against the Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events ("Termination Events") shall occur:
(a) by the mutual written consent of Buyer and the Company;
(b) by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer Servicer (if Seller or an Affiliate of Seller) shall not fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for two (2) Business Days after notice (which may be permitted by telephone) to terminate this Agreement pursuant to this Section 9.1(b) Seller if such failure is the failure to consummate the sale of the Purchased Units by the End Date results from, deliver a Periodic Report when due or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies notice (which may be by telephone) to Seller in all other cases or (ii) Servicer (if Seller or an Affiliate of Seller) or Seller (if not Servicer) shall fail to make any payment or deposit to be made by it hereunder when due; or
(b) Seller or Guarantor shall fail to perform or observe any term, obligation, covenant or agreement contained in Section 7.03 or 7.04 or to furnish to the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”Administrative Agent, pursuant to Section 7.02(e), then Buyer may not terminate this Agreement under this Section 9.1(d) a certificate required as a result of such inaccuracy knowledge by an Executive Officer of Seller or breach prior to the expiration Guarantor (as applicable) of the Member Cure Period, provided the Company, TopCo, occurrence of a Termination Event or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);an Unmatured Termination Event; or
(e) by the Company if: (i) If Seller shall fail to perform or observe any of Buyer’s representations other term, obligation, covenant or agreement contained herein on its part to be performed or observed (other than in Section 7.03 or 7.04) and warranties contained in this Agreement shall be inaccurate as any such failure remains unremedied, until the first to occur of the Agreement Datedate forty-five (45) days after an Executive Officer of Seller or Guarantor first obtains knowledge, or should have, in the exercise of reasonable diligence, obtained knowledge, thereof or the date thirty (30) days after written notice thereof shall have become inaccurate as of a date subsequent been given to Seller by the Agreement DateAdministrative Agent, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained representation or warranty made by Seller or Guarantor in this Agreement (other than in Section 6.01(b), 6.01(c), 6.01(e), 6.01(h), 6.02(b), 6.02(c) or 6.02(e)), or in any other Agreement Document to which it is a party, shall prove to have been incorrect, incomplete or misleading when made or deemed made in any material respect, and any such representation or warranty continues to be incorrect, incomplete or misleading in any material respect until the first to occur of the date forty-five (45) days after an Executive Officer of Seller or Guarantor first obtains knowledge, or should have, in the exercise of reasonable diligence, obtained knowledge, thereof or the date thirty (30) days after written notice thereof shall have been breached such that given to Seller by the condition set forth Administrative Agent or (iii) any representation or warranty made by Seller or Guarantor in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”6.01(b), then the Company may not terminate this Agreement under this Section 9.1(e6.01(c), 6.01(e), 6.01(h), 6.02(b), 6.02(c) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).6.02
Appears in 1 contract
Termination Events. This Agreement may Each of the following events shall, upon the occurrence and continuance thereof, be terminated prior to the Closinga "Termination Event":
(a) by The Seller shall fail to make any payment, transfer or deposit as required to be made hereunder, under the mutual written consent Fee Letter or under any other Principal Agreement when due and such failure shall remain unremedied for a period of Buyer and five (5) calendar days after the Company;due date; or
(b) Any representation or warranty made or deemed to be made by either Buyer the Seller or any Performance Guarantor or any of their respective officers under or in connection with this Agreement or any other Principal Agreement or other information or report delivered pursuant hereto or thereto shall prove to have been false, misleading or incorrect in any material respect when made; provided that any breach of a representation and warranty in Section 6.02 with respect to a Mortgage Loan as of the Company, related Purchase Date shall not constitute a Termination Event if the Closing has not taken place on or before 5:00 p.m. (Eastern timeSeller complies with its repurchase obligation set forth in Section 2.04(c) on March 9, 2021 (the “End Date”)with respect to such Mortgage Loan; provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;or
(c) The Seller or any Performance Guarantor shall fail to perform or observe any other material term, covenant or agreement contained in this Agreement or any other Principal Agreement (other than as referred to in Section 8.01(a)) on its part to be performed or observed and any such failure shall remain unremedied beyond the expiration of any applicable grace or notice period expressly provided for therein; or
(d) The Seller, Servicer or any Performance Guarantor generally shall not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or
(e) The Seller, Servicer or any Performance Guarantor shall (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor or liquidator of it or of all or a substantial part of its assets; (ii) file a voluntary petition in bankruptcy, (iii) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any Debtor Laws, (iv) file an answer admitting the allegations of or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding, or (v) take action for the purpose of effecting any of the foregoing; or
(f) An involuntary petition or complaint shall be filed against the Seller, the Servicer, or any Performance Guarantor seeking bankruptcy or reorganization of the Seller, the Servicer, or any Performance Guarantor or a receiver, custodian, trustee, intervenor or liquidator shall be appointed for all or substantially all of the assets of either the Seller, the Servicer or any Performance Guarantor; or an order, order for relief, judgment or decree shall be entered by Buyer or the Company if a any court of competent jurisdiction or other Governmental Authority competent authority approving a petition or complaint seeking reorganization of the Seller, the Servicer or any Performance Guarantor or appointing a receiver, custodian, trustee, intervenor or liquidator of the Seller, the Servicer or any Performance Guarantor or of all or substantially all of the assets of the Seller, the Servicer or any Performance Guarantor; or
(i) The Seller, the Servicer or any Performance Guarantor shall have issued a final fail to make when due and nonappealable Orderpayable or within any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any payment on any Indebtedness with an unpaid principal balance of over $1,500,000 with respect to the Seller or the Servicer, or shall have taken any other action, having $10,000,000 in the effect case of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereineither Performance Guarantor; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, any event or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of occurs under any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company provision contained in this Agreement shall be inaccurate as any such obligation or any agreement securing or relating to such obligation (or any other breach or default under such obligation or agreement occurs) if the effect thereof is to cause or permit with the giving of notice or lapse of time or both the Agreement Date, holder or shall have trustee of such obligation to cause such obligation to become inaccurate as of a date subsequent due prior to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedits stated maturity; or (iii) any Material Adverse Effect shall have occurredsuch obligation becomes due (other than by regularly scheduled payments) prior to its stated maturity; or (iv) any of the foregoing occurs with respect to any one or more items of Indebtedness with an unpaid principal balance exceeding, in the aggregate, $1,500,000 with respect to the Seller or the Servicer, or $10,000,000 in the case of either Performance Guarantor; or
(h) The Seller, Servicer or any event Performance Guarantor shall fail within 30 days to timely appeal any final judgments or other Effect to pay, bond or otherwise discharge any judgments or orders for payment of money in each case in excess of $5,000,000, individually or in the aggregate; or
(i) Any Person shall levy on, seize or attach all or any material portion of the assets of the Seller, the Servicer or any Performance Guarantor and within thirty (30) days thereafter the Seller, the Servicer or the Performance Guarantor shall not have occurred dissolved such levy or circumstance attachment, as the case may be, and, if applicable, regained possession of such seized assets; or
(j) The Seller or other Effect the Servicer becomes ineligible to originate, sell or service mortgage loans to FNMA, FHLMC or GNMA, or FNMA, FHLMC or GNMA shall exist thatimpose any sanctions upon or terminate or revoke any rights of the Seller or the Servicer; or
(k) If (i) any Governmental Authority cancels the Seller's right to be either a seller or servicer of such Governmental Authority's insured or guaranteed mortgage loans or mortgage-backed securities, in combination with (ii) any other events, circumstances Approved Takeout Investor cancels for cause any servicing or other Effects, would underwriting agreement between the Seller and such Approved Takeout Investor that could reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in Effect or (iii) the case Seller receives notice from a Governmental Authority that such Governmental Authority intends to revoke such Seller's right to be a seller or servicer of clauses “(i)” such Governmental Authority's insured or guaranteed mortgage loans or mortgage-backed securities and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member such notice is curable by the Company, TopCo, or such Member through the use of reasonable efforts not withdrawn within ten (10) Business Days after Buyer notifies the Company in writing days of the existence receipt thereof; or
(l) Any material provision of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCoAgreement, or any other Principal Agreement shall for any reason cease to be in full force and effect, or be declared null and void or unenforceable in whole or in part; or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure validity or enforceability of any such inaccuracy document shall be challenged or breach denied; or
(it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(dm) A "change in control," with respect to such inaccuracy the ownership of AHMIC shall have occurred after the date hereof (and as used in this subparagraph, the term "change in control" shall mean an acquisition by any Person, partnership or breach if such inaccuracy group, as defined under the Securities Exchange Act of 1934, as amended, of a direct or breach is cured prior to the expiration indirect beneficial ownership of 10% or more of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as then-outstanding voting stock of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedPerformance Guarantors); or (ii) if AHMIC shall cease at any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent time to the Agreement Date own directly or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing indirectly 100% of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration stock of the Buyer Cure Period, provided Buyer, during Seller and the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).Servicer; or
Appears in 1 contract
Sources: Mortgage Loan Purchase and Sale Agreement (American Home Mortgage Investment Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) a Pledgor shall fail to make any payment or deposit to be made by it hereunder or under the mutual written consent of Buyer and the Company;Receivables Purchase Agreement when due hereunder or thereunder; or
(b) any representation or warranty made by either Buyer a Pledgor, the Seller or an Eligible Originator in, as applicable, this Agreement, the CompanyReceivables Purchase Agreement, if the Closing has not taken place on any other Transaction Document to which it is a party or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if have been cured and corrected for a period of 30 days after the failure to consummate the sale earlier of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (iix) the Company date it first became known to any officer of a Pledgor or (y) the date on which written notice thereof shall not be permitted have been given to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units a Pledgor by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;other party hereto; or
(c) any certification or statement made by a Pledgor, the Seller or an Eligible Originator in, as applicable, this Agreement, the Receivables Purchase Agreement, any other Transaction Document to which it is a party or in any or any certificate or report delivered by it pursuant to any of the foregoing shall prove to have been incorrect in any material respect when made or deemed made and a Material Adverse Effect shall result which shall not have been cured and corrected for a period of 30 days after the earlier of (ix) by Buyer the date it first became known to any officer of a Pledgor or (y) the Company if a court of competent jurisdiction or other Governmental Authority date on which written notice thereof shall have issued been given to a final and nonappealable Order, or shall have taken Pledgor by any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinparty hereto; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) a Pledgor shall default in any material respect in the performance of any payment or undertaking (other than those covered by Buyer if: clause (a) above) (i) any of the representations and warranties of TopCo, the Members, to be performed or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in observed under Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”5.1(a)(vi), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”5.1(h), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period5.1(l), provided Buyer5.2(a), during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).95 102
Appears in 1 contract
Sources: Transfer and Administration Agreement (Unicapital Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer Any Seller shall fail to make any payment or deposit required hereunder when due and the Company;such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer any Seller in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant any representation or warranty which itself contains a materiality threshold and provided further, that any such incorrect representation, warranty, certification or statement relating to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Receivable for which Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company has actually received a Purchase Price Credit shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, constitute a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Termination Event hereunder.
(c) Any Seller shall breach any covenant contained in Section 4.1(b)(i) which is not cured within three (3) days, or any Seller shall breach any covenant contained in Section 4.2(c) or 4.2(e), which is not cured within thirty (30) days, or any Seller shall breach any other covenant contained in Section 4.2(a), (b) or (d).
(d) Any Seller shall breach, fail to perform or observe any covenant contained in any Section of this Agreement (which is not covered by another subsection, paragraph or clause of this Section 5.1) or of any other Transaction Document to which it is a party which is not cured within thirty (30) days after written notice from Buyer (or the Administrative Agent, as Buyer's pledgee).
(e) Failure of any Seller or any of its Subsidiaries to pay any Material Debt when due; or the default by any Seller or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which any Material Debt was created or is governed, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Material Debt to cause such Material Debt to become due prior to its stated maturity; or Material Debt of any Seller or any of its Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as a result of the sale of an asset securing such Material Debt) prior to the stated maturity thereof.
(i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority Any Seller shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against any Seller seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
similar official for it or any substantial part of its property, and, if against Seller, any such proceeding or case shall continue undismissed for a period of sixty (d60) by Buyer if: (i) any of the representations and warranties of TopCoor more days, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect Seller shall have occurred, or take any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if of this subsection (f).
(g) A Change of Control shall occur.
(h) A final judgment or judgments for the payment of money in excess of $10,000,000 in the aggregate (exclusive of judgment amounts fully covered by insurance where the insurer has admitted liability in respect of such judgment) or in excess of $50,000,000 in the aggregate (regardless of insurance coverage) shall be rendered by one or more courts, administrative tribunals or other bodies having jurisdiction against any Seller or any of Buyer’s covenants contained in this Agreement its Subsidiaries and the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof and the Company or the relevant Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been breached stayed, appeal therefrom and cause the execution thereof to be stayed during such that the condition set forth appeal
(i) The Subordinated Note shall be assigned, pledged or otherwise transferred to any Person in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing violation of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)last section thereof.
Appears in 1 contract
Termination Events. This Agreement may The occurrence of any of the following (without the need for the taking of any action) shall be terminated prior to the Closinga “Termination Event”:
(a) by Upon the mutual effective date of the Acceptable Plan or a written consent of Buyer agreement among the Debtors and the CompanyRequired Consenting Secured Parties terminating this Support Agreement;
(b) Upon entry of an order by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Ordercompetent governmental or regulatory authority making illegal or otherwise restricting, preventing or prohibiting the consummation of the Restructuring Transactions contemplated by the Acceptable Plan or this Support Agreement;
(c) Upon filing of any motion or other pleading by one or more of the Debtors seeking the entry of an order, or shall have taken upon entry of an order, by any other action, having the effect court of permanently restraining, enjoining or otherwise prohibiting competent jurisdiction authorizing the sale of all or substantially all of the Purchased Units as contemplated herein; Debtors’ assets pursuant to section 363 of the Bankruptcy Code or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawotherwise;
(d) The occurrence of any breach of this Support Agreement by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent Parties (to the Agreement Date, such that extent not otherwise cured or waived in accordance with the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effectterms hereof); provided, howeverthat if any Party (other than any Plan Debtor) shall breach its obligations pursuant to this Support Agreement, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Termination Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) arising as a result of such inaccuracy act or breach prior omission shall apply only to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate Party and this Support Agreement pursuant to this Section 9.1(d) shall otherwise remain in full force and effect with respect to the Debtors and all such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)remaining Parties;
(e) On the date that any Plan Debtor withdraws the Acceptable Plan, publicly announces its intention not to support the Acceptable Plan or files any plan of reorganization or liquidation and/or disclosure statement that is not consistent with the Acceptable Plan or Acceptable Disclosure Statement, respectively, or publicly announces its support for any such inconsistent plan and/or disclosure statement, gives the notice described in Section 2.1(a)(1)(iii) hereof, or otherwise evinces an intention not to proceed with the Acceptable Plan or to proceed with any alternative plan or form of transaction;
(f) On the date of entry of any order in the Chapter 11 Cases terminating the Plan Debtors’ exclusive right to file a plan or plans of reorganization pursuant to Section 1121 of the Bankruptcy Code; provided that such order is not the result of a motion filed by any Consenting Secured Party;
(g) On the Company if: (i) date any of Buyer’s representations and warranties contained in this Agreement the Chapter 11 Cases shall be inaccurate as dismissed or converted to a chapter 7 case, or a chapter 11 trustee with plenary powers, a responsible officer, or an examiner with enlarged powers relating to the operation of the Agreement Date, or shall have become inaccurate as businesses of a date subsequent to the Agreement Date, such that the condition Debtors (powers beyond those set forth in Section 8.1 would not 1106(a)(3) and (4) of the Bankruptcy Code) shall be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy appointed in any of Buyer’s representations the Chapter 11 Cases or the Debtors shall file a motion or other request for such relief;
(h) On the date of either (1) a filing by any Debtor of any motion, application or adversary proceeding challenging the validity, enforceability, perfection or priority of or seeking avoidance of the liens securing the obligations referred to in the Credit Agreement, the Indenture and warranties the collateral documents related thereto (collectively, the “Secured Obligations”) or any other cause of action against and/or with respect to the Secured Obligations, the prepetition liens securing such Secured Obligations and the Consenting Secured Parties (or if the Debtors support any such motion, application or adversary proceeding commenced by any third party or consent to the standing of any such third party) or (2) the entry of an order of the Bankruptcy Court providing relief against the interests of any Consenting Secured Party with respect to any of the foregoing causes of action or proceedings;
(i) Upon any material adverse change regarding the feasibility of the Acceptable Plan arising on or after the Effective Date of this Support Agreement, including, without limitations, the assertion of material contingent and/or unliquidated liabilities, as determined by the Required Consenting Secured Parties in their reasonable discretion;
(j) Upon the amendment, modification of, or the filing of a date subsequent pleading by any of the Plan Debtors that seeks to amend or modify the Acceptable Plan, the Acceptable Disclosure Statement or any documents related to the Acceptable Plan or Acceptable Disclosure Statement, notices, exhibits or appendices, which amendment, modification or filing is inconsistent with this Support Agreement Date and not otherwise consented to by the Required Consenting Secured Parties;
(k) Upon failure of the Debtors to commence the Chapter 11 Cases on or a breach of a covenant by Buyer is curable by Buyer through before 11:59 p.m. (New York City time) on February 18, 2013;
(l) 11:59 p.m. (New York City time) on the use of reasonable efforts within ten fifth (105th) Business Days Day after the Company notifies Buyer Petition Date, unless prior thereto the Bankruptcy Court enters an interim order in writing the Chapter 11 Cases of the existence Debtors under, inter alia Sections 105, 361, 362, 363 and 364 of such inaccuracy or breach the Bankruptcy Code in form and substance satisfactory to the Required Consenting Secured Parties, authorizing the Debtors to incur postpetition financing and use cash collateral, granting adequate protection to the prepetition Secured Parties, and scheduling a final hearing pursuant to Bankruptcy Rule 4001(B) (the “Buyer Cure PeriodInterim DIP Order”);
(m) 11:59 p.m. (New York City time) on the fortieth (40th) day after the date of entry of the Interim DIP Order, then unless prior thereto the Bankruptcy Court enters a final order in the Chapter 11 Cases of the Debtors under, inter alia Sections 105, 361, 362, 363 and 364 of the Bankruptcy Code in form and substance satisfactory to the Required Consenting Secured Parties, authorizing the Debtors to incur postpetition financing and use cash collateral and granting adequate protection to the prepetition Secured Parties (the “Final DIP Order” and together with the Interim DIP Order, the “DIP Orders”);
(n) Upon the entry of an order by a court of competent jurisdiction reversing, modifying, amending, staying or vacating either of the Interim DIP Order or the Final DIP Order;
(o) 11:59 p.m. (New York City time) on the date of the occurrence of an “Event of Default” under, and as such term is defined in, the DIP Credit Agreement and the acceleration of the obligations thereunder;
(p) 11:59 p.m. (New York City time) on the date that is 25 days after the Petition Date, if the Plan Debtors shall not have filed the Acceptable Plan and the Acceptable Disclosure Statement with the Bankruptcy Court on or before such time;
(q) 11:59 p.m. (New York City time), on the date that is 75 days after the Petition Date, unless the Bankruptcy Court has entered an order, in form and substance satisfactory to the Required Consenting Secured Parties, approving the Acceptable Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code on or before such time;
(r) 11:59 p.m. (New York City time), on the date that is 15 days following entry of the order approving the Acceptable Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code, unless prior thereto the Company may commences the solicitation of acceptances of the Acceptable Plan;
(s) 11:59 p.m. (New York City time), on July 5, 2013, if the Plan Debtors shall not terminate this Agreement under this Section 9.1(ehave filed with the Bankruptcy Court on or before such time a supplement to the Acceptable Plan containing documents in form and substance reasonably satisfactory to the Required Consenting Secured Parties as contemplated by the Term Sheet (the ”Acceptable Plan Supplement“);
(t) as a result 11:59 p.m. (New York City time), on July 15, 2013, unless the Bankruptcy Court has entered the Confirmation Order on or before such time;
(u) 11:59 p.m. (New York City time) on July 31, 2013, unless the “effective date” of the Acceptable Plan has occurred prior thereto;
(v) Any of the Lender Protections are not approved in the Interim DIP Order or the Final DIP Order of if such protections or any of the other adequate protection provided to the Consenting Lender is unwound or otherwise successfully challenged at any time after entry of such inaccuracy interim or breach prior final order;
(w) The non-payment of any accrued, unpaid and ongoing expenses incurred by the Consenting Secured Parties in connection with the Restructuring Transactions and any agreements related thereto in accordance with section 9.12 of this Support Agreement; or
(x) 11:59 p.m. (New York City time), on the date that is 60 days after the Petition Date, unless the Bankruptcy Court has entered an order establishing bar dates for submitting proofs of claim and requests for payment pursuant to the expiration section 503(b)(9) of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Bankruptcy Code.
Appears in 1 contract
Termination Events. This Any of the following acts or occurrences shall constitute a Termination Event under this Agreement may be terminated prior to the Closing:(each, a “Termination Event”):
(a) The Servicer shall fail to deposit to the Remittance Account any Collections received by the mutual written consent of Buyer Servicer as and when required in accordance with this Agreement, or the CompanyServicer shall fail to pay to the Lender any payment in the amount and on the date required to be made in accordance with this Agreement, and any such failure shall continue for more than two (2) Business Days;
(b) by either Buyer The Servicer shall fail to observe or the Company, if the Closing has not taken place on perform in any respect any covenant or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not agreement required to be permitted to terminate performed thereby under this Agreement pursuant or under any other Loan Document to this Section 9.1(b) if which the failure to consummate the sale of the Purchased Units by the End Date results from, or Servicer is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained hereinparty, and the continuance of such default or breach for a period of fifteen (ii15) calendar days after there has been given to the Company shall not Servicer a written notice specifying the default or breach and requiring it to be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinremedied;
(c) (i) by Buyer Any representation, warranty or statement of the Company if a court Servicer made in this Agreement shall prove to have been incorrect in any material respect, or any representation, warranty or statement of competent jurisdiction the Servicer in any certificate, report or other Governmental Authority statement, in writing or orally, delivered to any party hereto shall have issued a final and nonappealable Order, not satisfy the standard applicable to such representation or shall have taken any other action, having the effect warranty as set forth in Section 5.1(k) of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawthis Agreement;
(d) The Servicer or Encore Capital Group shall be or become insolvent, or admit in writing its inability to pay its debts as they mature, or make a general assignment for the benefit of creditors; or the Servicer or Encore Capital Group shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or consent of the Servicer or Encore Capital Group and shall not be discharged within sixty (60) days of appointment; or the Servicer or Encore Capital Group shall institute (by Buyer if: (ipetition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer or Encore Capital Group; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as property of the Agreement Date, Servicer or Encore Capital Group and such shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedremain unstayed or undismissed for sixty (60) days; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by A voluntary petition naming the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate Servicer or Encore Capital Group, as of debtor, is filed under the Agreement DateUnited States Bankruptcy Code, or an involuntary petition naming the Servicer or Encore Capital Group, as debtor, is filed under the United States Bankruptcy Code and such involuntary petition shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or remain undismissed for sixty (ii60) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).days;
Appears in 1 contract
Termination Events. This Agreement may Each of the following events shall be terminated prior to the Closinga "Termination Event" hereunder:
(ai) Servicer (if API) shall fail to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for three Business Days or (ii) either Servicer (if API) or Seller shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Buyer Seller, any Originator or the Company, if the Closing has not taken place on Servicer (or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representationstheir respective officers) under or in connection with this Agreement, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this any other Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Document or any Member of Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any of its representations, warranties, covenants or agreements contained herein;material respect when made; or
(c) Seller, API or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document on its part to be performed or observed and any such failure shall remain unremedied for ten Business Days after written notice thereof shall have been given by the Agent to Seller or API; or
(d) A default (monetary, covenant or otherwise) shall have occurred and be continuing under or any instrument, contract, indenture or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $2,000,000 of, or guaranteed by, API or any Affiliate of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or
(e) The average of the Delinquency Ratios for any three successive Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall have occurred and remained continuing with respect to Seller, API, any Originator or any Affiliate of any thereof; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Buyer Seller or API to the Company if a court Agent and Purchaser prior to the date of competent jurisdiction execution and delivery of this Agreement is pending against Seller, API or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; Originator or (ii) by Buyer if a Governmental Authority provides notice that it is seekingany material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or intends to seekgovernmental proceedings so disclosed, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatwhich, in the case of clauses “clause (i)” and “) or (ii)” only, if an inaccuracy in the reasonable opinion of the Agent is likely to materially adversely affect the financial position or business of Seller, API or any Originator or impair the ability of Seller, API or any Originator to perform its obligations under this Agreement or any other Agreement Document; or
(h) The Aggregate Participation Amounts shall exceed the Participation Amounts Limit; or
(i) The average of the Default Ratios for any three successive Month End Dates exceeds 5%; or
(j) There shall have occurred any event which materially adversely affects the collectability of the Pool Receivables or there shall have occurred any other event which materially adversely affects the ability of Seller, any Originator or
(i) (y) shall not be true at any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the representations assets of Seller or any Originator and warranties of the Company, TopCosuch lien shall not have been released and such lien shall not have been released within 8 Business Days, or the Members as Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or any Originator and such lien shall not have been released within 8 Business Days; or
(l) One Person, or a group of Persons acting in concert that are unacceptable to the Agreement Date Agent or the Purchaser obtain, in one or more transactions, control of more than 50% of the issued and outstanding shares of capital stock of API having the power to elect a breach majority of a covenant by the Company, TopCo, directors of API; or Seller or any Member is curable by the Company, TopCo, or such Member through the use Originator other than API ceases to be a wholly-owned Subsidiary of reasonable efforts within ten API; or
(10m) Business Days after Buyer notifies the Company in writing The average of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Dilution Ratios for any three successive Month End Dates exceeds 8%;
(en) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as The average of the Agreement Date, or shall have become inaccurate Net Charge-Off Ratios for any three successive Month End Dates exceeds 2%; or
(o) The Seller's Tangible Net Worth is less than $14,000,000; or
(p) A Purchase and Sale Termination Event (as of a date subsequent defined in Exhibit IV to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (iiPurchase and Sale Agreement) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)occurs.
Appears in 1 contract
Termination Events. This Agreement may The following events shall be terminated prior to the Closingtermination events (“Termination Events”) hereunder:
(a) default by the mutual written consent Borrower in the payment of Buyer any amount due and the Company;payable pursuant to Section 2.7(a)(iii), and such default shall continue for a period of five (5) days or more; or
(b) default by either Buyer or the Company, if Borrower in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale payment of the Purchased Units by the End Date results from, principal of or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale installment of the Purchased Units by principal when it becomes due and payable on the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Final Scheduled Payment Date; or
(c) the aggregate amount of Capital exceeds, for a period of two (i2) by Buyer Business Days or more, the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale product of the Purchased Units as contemplated hereinNet Advance Rate and the Collateral Amount; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator to make any payment or deposit required by Buyer if: the terms of any Transaction Documents; or
(f) failure on the part of the Borrower or the Originator in any material respect to observe or perform any of its covenants or agreements set forth in this Agreement or any other Transaction Document and such failure continues unremedied for more than 30 Business Days after written notice to the Borrower or the Originator (or 60 days if necessary to remedy such default); or
(g) any representation or warranty made or deemed to be made by the Borrower or the Originator under or in connection with any of the Transaction Documents or any information required to be given by the Borrower or the Originator to identify Loans or Contracts pursuant to any Transaction Document, shall prove to have been false or incorrect in any material respect when made, deemed made or delivered, and such failure continues unremedied for more than 30 days after the earlier of (x) the date on which the Borrower or Credit Acceptance discovers such breach or (y) the date on which the Borrower or Credit Acceptance receives written notice of such breach; or
(h) the occurrence of an Insolvency Event relating to the Originator, the Borrower or the Servicer; or
(i) any the Borrower shall become an “investment company” or require registration as an “investment company” within the meaning of the representations and warranties of TopCoInvestment Company Act; or
(j) a regulatory, tax or accounting body has ordered that the Members, or the Company contained in this Agreement shall be inaccurate as activities of the Agreement Date, Borrower or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any Affiliate of the covenants of Borrower contemplated hereby be terminated or may reasonably be expected to cause the CompanyBorrower or any Affiliate to suffer materially adverse regulatory, TopCo, accounting or the Members contained in this Agreement tax consequences; or
(k) there shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or exist any event or other Effect occurrence that has a reasonable possibility of causing a Material Adverse Effect; or
(l) the Borrower, the Servicer or Credit Acceptance shall have occurred enter into any merger, consolidation or circumstance conveyance transaction, unless in the case of Credit Acceptance or other Effect the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(m) either (i) the IRS shall exist that, in combination file notice of a lien pursuant to Section 6323 of the Code with regard to any other events, circumstances or other Effects, would assets of the Originator and such lien (A) could reasonably be expected to have or result in a Material Adverse Effect; providedEffect with respect to the Originator and (B) shall not have been released within five (5) Business Days, however, that, in the case of clauses “(i)” and “or (ii)” only, if an inaccuracy in ) the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the representations and warranties assets of the Company, TopCo, Borrower or the Members as of Originator and such lien (A) could reasonably be expected to have a date subsequent Material Adverse Effect with respect to the Agreement Date or Originator and (ii) shall not have been released within five (5) Business Days; or
(n) the Collateral Agent ceases to have a breach valid and perfected first priority security interest in a material portion of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or Collateral and such Member through the use of reasonable efforts failure has not been remedied within ten (10) Business Days after Buyer notifies Days; provided that, the Company in writing portion of the existence of such inaccuracy or breach (Collateral in which the “Member Cure Period”), then Buyer may Collateral Agent does not terminate this Agreement under this Section 9.1(d) as have a result of such inaccuracy or breach prior to valid and perfected first priority security interest will be material if the expiration outstanding balance of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration related Contracts exceeds 3% of the Member Cure Period);Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(e) by the Company if: (io) any Change-in-Control shall occur; or
(p) cumulativeCumulative Actual Collections are less than 75% of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if cumulativeCumulative Forecasted Collections for any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)three consecutive Collection Periods.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) the Transferor, any Seller or the Collection Agent shall fail to make any payment or deposit to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure continues for one (1) Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer the Transferor, the Collection Agent or any Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made (and, if any time period is provided for correcting any representation or warranty in Section 3.01, Section 3.02 or Section 3.03, has not been corrected within the time period provided in such Section); provided, however, that (i) no such representation, warranty, certification or statement relating to a Receivable for which the Transferor has timely paid to the Collection Agent the Deemed Collection required to be paid as a result thereof in accordance with Section 2.10(b) shall give rise to a Termination Event under this paragraph (b), (ii) any such incorrectness with respect to a representation or warranty in Section 3.01(f) or Section 3.01(r)
(i) shall not give rise to a Termination Event under this paragraph (b) if corrected within 15 days from the date a Responsible Officer of the Transferor obtains knowledge thereof, and (iii) any such incorrectness with respect to a representation or warranty in Section 3.01(e) or Section 3.01(s) shall not give rise to a Termination Event under this paragraph (b) if corrected within three (3) Business Days from the date a Responsible Officer of the Transferor obtains knowledge thereof; or
(c) the Transferor, any Seller or the CompanyCollection Agent shall fail to observe or perform in any material respect any other term, covenant or agreement in this Agreement or any other Transaction Document (and, if the Closing any time period is provided for any such observance or performance, such observance or performance has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”occurred within such time period); provided, that any such failure with respect to RECEIVABLES TRANSFER AGREEMENT the covenant set forth in Section 5.01(f) shall not give rise to a Termination Event under this paragraph (c) until after giving effect to the cure period, if any, set forth in the related Contract; or
(d) the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent or C&A or any Seller which shall have sold Receivables with an Outstanding Balance at such time of $10,000,000 or greater pursuant to the Receivables Purchase Agreement; or
(f) after the filing in the appropriate offices of the financing statements described in Sections 4.01(c), 4.01(d), 4.01(e) and 4.01(f), the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims (other than Permitted Encumbrances); or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferor or any Seller shall enter into any corporate transaction or merger whereby it is not the surviving entity (other than, in the case of any Seller, a merger or consolidation which does not, in the reasonable opinion of the Funding Agents, materially adversely affect the collectibility of the Receivables sold by such Seller or the performance of such Seller's obligations under the Transaction Documents); or
(i) Buyer there shall have occurred any event or condition which would have material adverse effect on either the collectibility of the Receivables or the ability of the Transferor or any Seller to perform its respective obligations under the Transaction Documents to which it is a party since the Restatement Date; or
(j) the Percentage Factor exceeds the Maximum Percentage Factor and the Transferor shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units have, by the End Date results fromnext Business Day thereafter, reduced the Net Investment from previously received Collections or is caused by, a material breach by Buyer of other funds available to the Transferor so as to reduce the Percentage Factor on such Business Day to less than or equal to 100%; or
(k) the average Dilution Ratio for the three preceding Settlement Periods exceeds 4.50%; or
(l) the average Default Ratio for the three preceding Settlement Periods exceeds 3.75%; or
(m) the average Delinquency Ratio for the three preceding Settlement Periods exceeds 14.00%; or
(n) C&A or any of its representationsSubsidiaries shall default in the observance or performance of Section 6.14 or Section 6.15 of the Senior Credit Facility or an Event of Default (as such term is defined RECEIVABLES TRANSFER AGREEMENT in the Senior Credit Facility) described in clause (m) of Article VII of the Senior Credit Facility shall have occurred; or
(o) a Responsible Officer of the Transferor or any Seller shall receive notice or become aware that a notice of lien has been filed against the Transferor, warranties, covenants any Seller or agreements contained herein, the Collection Agent under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(p) a Purchase Termination Date shall have occurred under the Receivables Purchase Agreement with respect to all Sellers; or
(q) C&A and the Sellers (iiin the aggregate) shall fail to maintain 100% ownership of the Transferor; or
(r) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or existence at any Member time of any of its representationslitigation, warranties, covenants arbitration proceedings or agreements contained herein;governmental proceeding involving any Seller or the Transferor or the Receivables which would be reasonably likely to have a Material Adverse Effect; or
(cs) (i) by Buyer one or more judgments for the Company if payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seekSeller, the imposition Collection Agent, C&A or their Subsidiaries or any combination thereof and the same shall remain undischarged for a period of an Antitrust Restraint as a condition thirty (30) consecutive days during which execution shall not be effectively stayed or to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of extent that an insurance carrier has accepted a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedclaim for coverage thereto; (ii) any one or more judgments for the payment of money shall be rendered against the covenants of the Company, TopCo, or the Members contained in this Agreement Transferor and shall not have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect action shall have occurredbe legally taken by a judgment creditor to attach or levy upon any assets of the Transferor, a Seller, the Collection Agent, C&A, or their Subsidiaries to enforce any event or other Effect such judgment; or
(t) the Collection Agent shall have occurred or circumstance or other Effect shall exist that, in combination with fail to deliver to the Administrative Agent any other events, circumstances or other Effects, would reasonably report required to be expected to have or result in a Material Adverse Effect; provided, however, that, in delivered by it under the case terms of clauses “the Transaction Documents within one (1) Business Day of (i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to any Deposit Report or Settlement Statement, when such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; report was due or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to any other report, receipt by the Collection Agent of written notice from the Administrative Agent that such inaccuracy or breach if report is due; or
(u) any Event of Bankruptcy shall occur with respect to any Seller which shall have sold Receivables with an Outstanding Balance at such inaccuracy or breach is cured prior time of less than $10,000,000 pursuant to the expiration of the Buyer Cure Period)Receivables Purchase Agreement.
Appears in 1 contract
Sources: Receivables Transfer Agreement (Collins & Aikman Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closing:following events shall constitute a termination event (each, a "Termination Event"):
(a) by failure on the mutual written consent part of Buyer the Borrower or Servicer to make any payment in full or in part hereunder which is or has become due under the terms of the Transaction Documents when the same becomes due and payable, including, without limitation, all Yield, Fees, Monthly Principal Payment Amount and the CompanyRequired Principal Amount for each Payment Date;
(b) by either Buyer or failure on the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale part of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Borrower or any Member of Seller to duly observe or to perform any of its representationsmaterial term, warrantiescovenant, covenants agreement or agreements contained hereinundertaking set forth in any Transaction Document;
(c) any representation or warranty of the Borrower or any Seller in any of the Transaction Documents is discovered to be untrue in any material respect or any statement or certificate furnished by the Borrower, any Seller or Servicer pursuant hereto or thereto is discovered to be untrue in any material respect on the date as of which the facts therein set forth or so certified were deemed to have been made;
(d) the Borrower, any Seller, the Servicer or any of their respective Subsidiaries (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Ordergenerally not pay, or shall have taken any other actionbe unable to pay, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units shall admit in writing its inability to pay its debts as contemplated hereinsuch debts become due; or (ii) by Buyer if a Governmental Authority provides notice that it is seekingshall make an assignment for the benefit of creditors, or intends petition or apply to seekany tribunal for the appointment of a custodian, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Membersreceiver, or the Company contained in this Agreement shall be inaccurate as trustee for it or for a substantial part of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedits assets; or (iii) shall commence any Material Adverse Effect proceeding under any bankruptcy, reorganization, arrangements, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction whether now or hereafter in effect; or (iv) shall have occurredhad any such action or application filed or any such proceeding commenced against it in which an order for relief is requested or entered or an adjudication or appointment is made (which application or proceeding is not dismissed within sixty (60) days of filing); or (v) shall indicate, by any act or omission, its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or any substantial part of its properties; or (vi) shall suffer any such custodianship, receivership, or trusteeship or the occurrence of any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy any condition which could be the ground, basis or breach (the “Member Cure Period”)cause for any action, then Buyer may not terminate this Agreement under application, proceeding or petition described in this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period8.1(d);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).
Appears in 1 contract
Sources: Securities Funding Agreement (Union Acceptance Corp)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a “Termination Event”:
(a) by the mutual Such Originator shall fail to make any payment or deposit required hereunder when due, or to perform or observe any term, covenant or agreement hereunder or under any other Transaction Document to which it is a party and such failure shall continue for 30 days after written consent notice of Buyer and the Company;such failure is given.
(b) Any representation, warranty, certification or written statement made by either Buyer such Originator in this Agreement, any other Transaction Document to which it is a party, or in any other document delivered pursuant hereto or thereto shall prove to have been materially incorrect when made or deemed made; provided that the Company, if materiality threshold in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer preceding clause shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any representation or is caused by, warranty which itself contains a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality threshold.
(c) An Originator fails to (iA) make any payment when due (whether by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderscheduled maturity, required prepayment, acceleration, demand, or shall have taken otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000, or (B) observe or perform any other actionagreement or condition relating to such Indebtedness or Guarantee referred to in the immediately preceding clause (A) or contained in any instrument or agreement evidencing, having securing or relating thereto, or any other event occurs, the effect of permanently restrainingwhich default or other event is to cause, enjoining or otherwise prohibiting to permit the sale holder or holders of such Indebtedness or the Purchased Units beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded.
(d) There occurs under any Swap Contract an Early Termination Date (as contemplated hereindefined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which an Originator is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which an Originator is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Originator as a result thereof is greater than $50,000,000. Table of Contents
(e) An Originator institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, examiner, rehabilitator or similar officer for it or for all or any material part of its property; or (ii) by Buyer if a Governmental Authority provides notice that it any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is seekingappointed without the application or consent of such Originator and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to an Originator or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of order for relief is entered in any applicable waiting period under the HSR Act or other applicable Antitrust Law;such proceeding.
(df) by Buyer if: A Change of Control shall occur.
(g) There is entered against an Originator (i) any one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the representations and warranties of TopCo$50,000,000 (to the extent not covered by independent, third-party insurance as to which the Membersapplicable insurer has not disputed, denied or failed to acknowledge coverage), or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCoone or more nonmonetary final judgments that have, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would could reasonably be expected to have have, individually or result in the aggregate, a Material Adverse Effect; provided, however, thatEffect and, in the case of clauses “either case, (i)” and “(ii)” only, if an inaccuracy in A) enforcement proceedings are commenced by any of the representations and warranties of the Company, TopCocreditor upon such judgment or order, or the Members as (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a date subsequent to the Agreement Date pending appeal or a breach of a covenant by the Companyotherwise, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company not in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)effect.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Termination Events. This Agreement may If any of the following events (each a “Termination Event”) shall occur and be terminated prior to the Closingcontinuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder in respect of Capital when due; or any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure shall remain unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer any Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (or, to the Companyextent any such representation or warranty is qualified by materiality or Material Adverse Effect, if such representation or warranty shall prove to have been incorrect in any respect subject only to the Closing has not taken place on materiality or before 5:00 p.m. (Eastern timeMaterial Adverse Effect qualification set forth therein) on March 9, 2021 (the “End Date”)when made or deemed made; provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;or
(c) any Transaction Party shall fail to perform or observe (A) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d), 5.01(j)(iv), 5.01(n) or 5.01(v) of this Agreement or Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(l)(iv) of the Originator Purchase Agreement or (B) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (B), such failure shall remain unremedied for ten (10) days after such Transaction Party has knowledge or receives notice thereof; or
(d) (i) by Buyer any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the Company if a court of competent jurisdiction or other Governmental Authority same shall have issued a final become due and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinpayable; or (ii) by Buyer if a Governmental Authority provides notice any event or condition occurs that it is seekingresults in any Material Indebtedness becoming due prior to its scheduled maturity, other than at the election of the Originator or any Subsidiary, or intends that, subject to seekany applicable grace period, enables or permits (with or without the giving of notice, the imposition lapse of an Antitrust Restraint time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided, however, that this clause (d)(ii) shall not apply to secured Indebtedness that becomes due as a condition result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Receivables and Related Security and Collections with respect thereto or there shall exist any Adverse Claims (except as created in favor of the Seller pursuant to the expiration Originator Purchase Agreement or termination in favor of the Administrative Agent and the Purchasers pursuant to this Agreement) on the Receivables or the Related Security or Collections with respect thereto; or
(g) any Change of Control shall occur or the Originator shall cease to own directly 100% of the issued and outstanding Equity Interests of the Seller; or
(h) there shall have occurred since the Initial Closing Date any event or condition which has had or could reasonably be expected to have a material adverse effect on (A) the ability of any applicable waiting period Transaction Party to perform its obligations under the HSR Act Transaction Documents or other applicable Antitrust Law;(B) the collectibility of the Receivables; or
(d) by Buyer if: (i) any the Receivable Interest Percentage exceeds the Maximum Receivable Interest Percentage unless, within two Business Days of obtaining notice or knowledge thereof, the Seller reduces the Capital from previously received Collections or other funds available to the Seller so as to reduce the Receivable Interest Percentage to less than or equal to the Maximum Receivable Interest Percentage; or
(j) the average of the representations and warranties of TopCo, Dilution Ratios for any three consecutive Calculation Periods exceeds 4.50%; or
(k) the Members, or the Company contained in this Agreement shall be inaccurate as average of the Agreement Date, Default Ratios for any three consecutive Calculation Periods exceeds 3.25%; or
(l) the average of the Delinquency Ratios for any three consecutive Calculation Periods exceeds 3.00%; or
(m) the average of the Loss-to-Liquidation Ratios for any twelve consecutive Calculation Periods exceeds 1.00%; or
(n) the average of the Portfolio Turnover Rates for any three consecutive Calculation Periods exceeds 8; or
(o) any Transaction Party receives notice or shall have become inaccurate as becomes aware that (i) a notice of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; federal tax lien has been filed against any Transaction Party or (ii) a notice of lien has been filed against any Transaction Party under Section 412(n) of the IRC or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the IRC or Section 302(f) of ERISA applies; or
(p) a “Termination Event” shall occur under (and as defined in) the Originator Purchase Agreement; or
(q) one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 or, in the case of the Seller, in an aggregate amount in excess of $25,000 (except in each case to the extent covered by insurance or other right of reimbursement or indemnification), or which have or would reasonably be expected to have a Material Adverse Effect, shall be rendered against the Originator, the Seller, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed or bonded pending appeal; or
(r) any of the covenants of the Company, TopCo, this Agreement or the Members contained in this Originator Purchase Agreement shall have been breached such that the condition set forth cease, for any reason, to be in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredfull force and effect, or any event Transaction Party shall so assert in writing or other Effect any Transaction Party shall otherwise seek to terminate or disaffirm its obligations under any such Transaction Document; or
(s) any Financial Covenant Default shall occur; or
(t) an ERISA Event shall have occurred or circumstance or other Effect and shall exist be outstanding that, in combination when taken together with any all other events, circumstances or other EffectsERISA Events that have occurred and are then outstanding, would reasonably be expected to have or result in a Material Adverse Effectliability of the Originator and its Subsidiaries in an aggregate amount exceeding $25,000,000, individually or in the aggregate; providedthen, howeverand in any such event, thatthe Administrative Agent may, in its discretion, and shall, at the case direction of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, Managing Agent or the Members as of a date subsequent Majority Committed Purchasers, declare the Termination Date to have occurred upon notice to the Agreement Seller (in which case the Termination Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall deemed to have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedoccurred); provided, however, that if an inaccuracy in the Termination Date shall occur automatically upon the occurrence of any Event of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Bankruptcy with respect to any Transaction Party without any requirement for the giving of notice. Upon any such inaccuracy declaration or breach if upon such inaccuracy or breach is cured prior automatic occurrence, the Purchasers, the Managing Agents and the Administrative Agent shall have, in addition to the expiration of rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under the Buyer Cure Period)UCC and under other applicable law, which rights and remedies shall be cumulative.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events (each a “Termination Event”) shall occur:
(a) Any SPV Entity, any Originator or any Servicer shall fail to make when due any payment or deposit required to be made by the mutual written consent of Buyer it under this Agreement or any other Transaction Document, and the Companysuch failure, shall continue unremedied for two (2) Business Days;
(b) any representation or warranty made or deemed made by either Buyer any SPV Entity, any Originator or the Company, if the Closing has not taken place on any Servicer (or before 5:00 p.m. (Eastern timeany of their respective officers) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate under or in connection with this Agreement or any other Transaction Document or any information or report delivered by any SPV Entity, any Originator or any Servicer pursuant to this Section 9.1(b) if the failure Agreement or any other Transaction Document, shall prove to consummate the sale of the Purchased Units by the End Date results from, have been incorrect or is caused by, a untrue in any material breach by Buyer of any of its representations, warranties, covenants respect when made or agreements contained hereindeemed made or delivered, and such incorrect or untrue representation, warranty, information or report, solely to the extent capable of cure, shall continue unremedied for thirty (ii30) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereindays;
(c) (i) by Buyer any SPV Entity, any Originator or the Company if a court of competent jurisdiction any Servicer shall fail to perform or other Governmental Authority shall have issued a final and nonappealable Orderobserve any term, covenant or shall have taken agreement under this Agreement or any other actionTransaction Document (other than any such failure which would constitute a Termination Event under another clause set forth in this definition of “Termination Event”), having the effect of permanently restrainingand such failure, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition solely to the expiration or termination extent capable of any applicable waiting period under the HSR Act or other applicable Antitrust Lawcure, shall continue unremedied for thirty (30) days;
(d) by Buyer if: this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Sold Assets or Pledged Collateral, free and clear of any Adverse Claim;
(e) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any SPV Entity, any Originator or any Servicer or their respective debts, or of a substantial part of their respective assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for any SPV Entity, any Originator or any Servicer or for a substantial part of their respective assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(f) any SPV Entity, any Originator or any Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in clause (e) of this Section 9.01, (iii) apply for or consent to the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors, or the board of managers (or similar governing body) of any SPV Entity, any Originator or any Servicer (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to above in this clause (f) or clause (e) of this Section 9.01;
(g) a Capital Coverage Deficit shall occur, and shall not have been cured within three (3) Business Days following any SPV Entity’s or any Servicer’s actual knowledge or receipt of notice thereof;
(h) any Seller, any Originator or any Servicer fails to make any payment (whether of principal or interest) in respect of any Material Indebtedness when and as the same shall become due and payable, after giving effect to any period of grace specified for such payment in the agreement or instrument governing such Material Indebtedness;
(i) any event or condition exists under any Material Indebtedness of the representations any SPV Entity, any Originator or any Servicer that causes such Material Indebtedness to become due prior to its scheduled maturity or any event or condition exists and warranties continues without waiver or remedy for a period of TopCo30 days that enables or permits (with or without the giving of notice, the Memberslapse of time or both) the holder or holders of any such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that no Termination Event shall arise under this clause (i) due to (i) any secured Material Indebtedness becoming due solely as a result of the voluntary sale or transfer of the assets securing such Material Indebtedness or (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof, in each case, so long as such Material Indebtedness is paid or otherwise satisfied as a result thereof within two Business Days of when due;
(j) any of the following shall occur:
(A) the average Default Ratios for any three consecutive Fiscal Months exceeds 6.004.25%;
(B) the average Delinquency Ratios for any three consecutive Fiscal Months exceeds 20.0017.50%;
(C) the average Dilution Ratios for any three consecutive Fiscal Months exceeds 6.004.50%; or
(D) the Days’ Sales Outstanding exceeds 8070 days;
(k) any SPV Entity shall be required to register as an “investment company” within the meaning of the Investment Company contained Act;
(l) any SPV Entity or any Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect (except to the extent resulting from an act or omission of any Purchaser Party or any of their respective Affiliates), or any of the any SPV Entity, any Originator or any Servicer (or any of their respective Affiliates) shall so state in writing;
(n) a Change in Control shall occur;
(o) Any Servicer shall resign as Servicer other than in accordance with Section 8.01(c);
(p) Any SPV Entity (or, in the case of the Limited Partnership, the general partner thereof) shall fail at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Manager) to have an Independent Manager who satisfies each requirement and qualification specified in this Agreement Agreement’s definition of “Independent Manager”;
(q) either (i) the Internal Revenue Service shall be inaccurate as file notice of a lien pursuant to Section 6323 of the Agreement DateCode with regard to any assets of any SPV Entity, any Originator or any Servicer, or (ii) the PBGC shall have become inaccurate as file notice of a date subsequent lien pursuant to Section 4068 of ERISA, Section 303(k) of ERISA, or 430(k) of the Agreement Date, such that Code with regard to any of the condition set forth in Section 7.1 would not be satisfiedassets of any SPV Entity or any of its ERISA Affiliates;
(r) (i) the occurrence of a Reportable Event; (ii) any the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the covenants Code or Section 307 of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedERISA; or (iii) the existence with respect to any Material Adverse Effect shall have occurredMultiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any SPV Entity or any of its ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any SPV Entity or any of its ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any SPV Entity or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to the Seller or any of its ERISA Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or other Effect shall have occurred condition with respect to a Pension Plan or circumstance a Multiemployer Plan, with respect to each of clause (i) through (ix), that either individually or other Effect shall exist that, in combination with any other events, circumstances or other Effectsthe aggregate, would reasonably be expected to have or result in a Material Adverse Effect;
(s) a Purchase and Sale Termination Event shall occur under any Purchase and Sale Agreement with respect to all applicable remaining Originators; providedor
(t) one or more judgments or decrees shall be entered against any SPV Entity, howeverany Originator, thator any Servicer, in the case or any Subsidiary of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of foregoing involving in the Company, TopCo, aggregate a liability (not paid or the Members as of a date subsequent to the Agreement Date extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or a breach shall not be vacated, discharged or stayed or bonded pending appeal for any period of a covenant by 30 consecutive days, and the Company, TopCo, aggregate amount of all such judgments equals or any Member is curable by the Company, TopCo, exceeds $50,000,000 (or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) solely with respect to any SPV Entity, $15,325); then, and in any such inaccuracy or breach if such inaccuracy or breach is cured prior event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the expiration Seller (x) declare the Maturity Date to have occurred (in which case the Maturity Date shall be deemed to have occurred), and (y) declare the Aggregate Capital and all other non-contingent Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the Member Cure Period);
giving of notice) described in subsection (e) or (f) of this Section 9.01 with respect to the Seller, the Maturity Date shall occur and the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC, PPSA and under other Applicable Law, which rights and remedies shall be cumulative. Without limiting the foregoing, the Administrative Agent may obtain from any court of competent jurisdiction an order for the appointment of an interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or of any or all of its Pledged Collateral and, by instrument in writing appoint one or more interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or any or all of its Pledged Collateral with such rights, powers and authority as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such interim receiver, receiver, manager or receiver and manager from time to time. To the extent permitted by Applicable Law, any such interim receiver, receiver, manager or receiver and manager appointed by the Company if: Administrative Agent shall (ifor purposes relating to responsibility for acts or omissions) be considered to be the agent of the Canadian Guarantor and not of the Administrative Agent or any of Buyer’s representations the other Secured Parties. Any proceeds from liquidation of the Sold Assets and warranties contained in this Agreement Pledged Collateral shall be inaccurate as applied in the order of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition priority set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)3.01.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer and the Company;
(b) by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that Any Originator shall fail (i) Buyer to make any payment or deposit required hereunder when due (other than with respect to a principal payment) and such failure shall not be permitted continue for three (3) consecutive Business Days, (ii) to terminate make any payment or deposit required hereunder when due with respect to a principal payment, or (iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clauses (i) and (ii) of this paragraph (a)) or any other Transaction Document to which it is a party and such failure shall continue for ten (10) consecutive Business Days.
(i) Any representation or warranty made by any of the Originators in this Agreement or the Receivables Purchase Agreement shall prove to have been incorrect in any respect when made or deemed made, (ii) any information contained in any Monthly Report shall prove to have been incorrect in any respect when made, or (iii) any representation, warranty, certification or statement (other than relating to projections or other forward-looking information) made by any of the Originators in any other Transaction Document or in any other document delivered pursuant hereto or thereto (other than in a Monthly Report) shall prove to this Section 9.1(bhave been incorrect in any material respect when made or deemed made.
(c) if Failure of any Originator to pay any Indebtedness when due in excess of $5,000,000 (after giving effect to any applicable grace periods); or the failure default by any Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to consummate cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of any Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) an Event of Bankruptcy shall occur with respect to Originator or any of its Subsidiaries.
(e) A Change of Control shall occur.
(f) One or more final judgments of a court of competent jurisdiction for the payment of money in an amount in excess of $5,000,000, individually or in the aggregate, shall be entered against Originator or any of its Subsidiaries on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty (60) consecutive days without a stay of execution.
(g) This Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of any Originator, or any Originator shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or Buyer (or its assigns) shall cease to have a valid and perfected first priority security interest in the Receivables, its Collections, "Supporting Obligations" (as defined in Article 9 of the UCC in effect in each relevant jurisdiction), each Originator's right, title and interest in, to and under each of the Transaction Documents to which it is a party, returned goods the sale of the Purchased Units which gave rise to any Receivable, security interests in favor of any Originator that secure payment of such Receivable and all other items of Related Security in which an interest therein may be perfected by the End Date results fromfiling of financing statements under Article 9 of the UCC and proceeds of the foregoing, or is caused byany Person shall contest the Buyer's perfected first priority ownership interest in that portion of the Related Security in which perfection cannot be accomplished under Article 9 of the relevant UCC, or the Buyer (or its assigns) shall incur any loss resulting from any Originator's failure to perfect Buyer's ownership interest in that portion of the Related Security in which perfection cannot be accomplished under Article 9 of the relevant UCC.
(h) The Internal Revenue Service shall file notice of a material breach by Buyer lien pursuant to Section 6323 of the Tax Code with regard to any of its representations, warranties, covenants the Receivables or agreements contained herein, the Related Security or the PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the Receivables or the Related Security and any such lien shall not have been released within the earlier to occur of (i) seven (7) days after the date of such filing and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if day on which the failure to consummate the sale of the Purchased Units by the End Date results from, Buyer (or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;assigns) becomes aware of such filing.
(c) (i) Any Plan of any Originator or any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding standard required by Buyer or applicable law, the Company if a court terms of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Ordersuch Plan, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale Section 412 of the Purchased Units as contemplated hereinTax Code or Section 302 of ERISA for any plan year or a waiver of such standard is sought or granted with respect to such Plan under applicable law, the terms of such Plan or Section 412 of the Tax Code or Section 303 of ERISA; or or
(ii) by Buyer if a Governmental Authority provides notice that it is seekingbeing, or intends to seekhas been, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, terminated or the Company contained in this Agreement shall be inaccurate as subject of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, termination proceedings under applicable law or the Members contained in this Agreement shall have been breached terms of such that the condition set forth in Section 7.2 would not be satisfiedPlan; or or
(iii) shall require any Material Adverse Effect shall have occurredOriginator or any of its ERISA Affiliates to provide security under applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to any Originator or any of its ERISA Affiliates under applicable law, the terms of such Plan, or Title IV ERISA, and there shall result from any event such failure, waiver, termination or other Effect shall event a liability to the PBGC or a Plan that would have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “.
(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCoj) Any event shall occur which has, or the Members as of could be reasonably expected to have a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Material Adverse Effect.
Appears in 1 contract
Termination Events. This Any of the following acts or occurrences shall constitute a Termination Event under this Agreement may be terminated prior to the Closing:(ea ch, a “Ter mination Event “):
(a) by the mutual written consent of Buyer OHC shall fail to observe or perform in any material respect any material covenant or agreement required to be performed thereby under this Agreement and the Companycontinuance of such default or breach for a period of fifteen (15) calendar days after there has been given to OHC a written notice specifying the default or breach and requiring it to be remedied;
(b) by either Buyer Any representation, warranty or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that statement of OHC in this Agreement (i) Buyer which is not qualified by materiality or material adverse effect shall not prove to be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale incorrect in any material respect as of the Purchased Units by the End Date results fromdate on which such representation, warranty or statement is caused by, a material breach by Buyer of any of its representations, warranties, covenants made or agreements contained herein, and (ii) the Company which is qualified by materiality or material adverse effect shall not be permitted provide to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale have been incorrect as of the Purchased Units by the End Date results fromdate on which such representation, warranty or statement is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinmade;
(c) (i) by Buyer OHC shall be or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderbecome insolvent, or admit in writing its inability to pay its debts as they mature, or make a general assignment for the benefit of creditors; or OHC shall have taken apply for or consent to the appointment of any other actionreceiver, having trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the effect application or consent of permanently restrainingOHC and shall not be discharged within sixty (60) days of appointment; or OHC shall institute (by petition, enjoining application, answer, consent or otherwise prohibiting otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the sale laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against OHC; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the Purchased Units as contemplated herein; property of OHC and such shall remain unstayed or undismissed for sixty (ii60) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawdays;
(d) by Buyer if: (i) any of A voluntary petition naming OHC, as debtor, is filed under the representations and warranties of TopCo, the MembersUnited States Bankruptcy Code, or an involuntary petition naming OHC, as debtor, is filed under the Company contained in this Agreement United States Bankruptcy Code and such involuntary petition shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; remain undismissed for sixty (ii60) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)days;
(e) by OHC shall liquidate, dissolve, terminate or suspend its business operations or otherwise fail to operate its business in the Company ifordinary course;
(f) Any of the following shall occur: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as entry of a date subsequent to court order which enjoins, restrains or in any way prevents OHC from conducting all or any material part of its business affairs in the Agreement Dateordinary course of business, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if withdrawal or suspension of any license required for the conduct of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing material part of the existence business of such inaccuracy or breach OHC; or
(the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(eg) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)OHC terminates its management services hereunder.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the ClosingOriginator:
(a) by The Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer The Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2.
(c) (i) by The Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of the Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by the Originator in this Agreement, any other actionTransaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect or misleading when made or deemed made in any material respect, having provided that the effect materiality threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(e) The Originator shall default, or the Performance Guarantor or any of permanently restrainingits Subsidiaries (other than the Originator) shall default, enjoining in the payment when due of any principal or otherwise prohibiting of or interest on any Material Indebtedness or shall fail to observe or perform any other agreement or condition relating to any such Material Indebtedness and such default has not been waived by the sale applicable lenders before the expiration of any applicable grace periods; or any other event or condition shall occur which results in a default under any such Material Indebtedness.
(f) (i) The Originator, Performance Guarantor or any of their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the Purchased Units as contemplated hereinbenefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against the Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, and in the imposition of an Antitrust Restraint as a condition to the expiration or termination case of any applicable waiting such proceeding instituted against (but not instituted by) it, either such proceeding shall remain undismissed or unstayed for a period under the HSR Act of 30 days, or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCoactions sought in such proceeding (Including, without limitation, the Members, entry of an order for relief or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as appointment of a date subsequent to the Agreement Datereceiver, such that the condition set forth in Section 7.1 would not be satisfied; (iitrustee or other similar official for it or any substantial part of its property) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; occur or (iii) any Material Adverse Effect shall have occurredthe Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any subsection (f).
(g) A Change of Buyer’s representations and warranties as of a date subsequent to the Agreement Date Control or a breach Credit Agreement Change of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Control shall occur with respect to the Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $15,000,000, individually or in the aggregate, shall be entered against the Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a “Termination Event”:
(a) by the mutual written consent Originator shall fail (i)-to make any payment or deposit required hereunder when due, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of Buyer this paragraph (a)) or any other Transaction Document to which it is a party and the Company;such failure shall continue for seven (7) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by either Buyer any Originator in this Agreement, any other Transaction Document to which it is a party or the Company, if the Closing has not taken place on in any other document delivered pursuant hereto or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer thereto shall not be permitted prove to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, have been incorrect in any material respect when made or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;deemed made.
(c) Failure of any Originator to pay any Indebtedness when due in excess of $1,000,000; or the default by such Originator in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of such Originator shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(i) by Buyer Any Originator or the Company if a court any of competent jurisdiction or other Governmental Authority its Subsidiaries shall have issued a final and nonappealable Order, generally not pay its debts as such debts become due or shall have taken any other action, having admit in writing its inability to pay its debts generally or shall make a general assignment for the effect benefit of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereincreditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against any Originator or any of its Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of its property and, solely in the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as case of a date subsequent to the Agreement Dateproceeding instituted against (and not by) such Originator, such that the condition set forth in Section 7.1 would proceeding is not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfieddismissed within 60 days; or (iii) any Material Adverse Effect shall have occurred, Originator or any event or other Effect of its Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties actions set forth in the foregoing clauses (i) or (ii) of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten this subsection (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”d), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);.
(e) by A Change of Control shall occur.
(f) One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained money in this Agreement an amount in excess of $1,000,000, individually or in the aggregate, shall be inaccurate entered against any Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for fifteen (15) consecutive days without a stay of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Sources: Receivables Sale Agreement (Patterson Companies, Inc.)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by the mutual written consent of Buyer Any Originator shall fail to make any payment or deposit required hereunder when due and the Companysuch failure shall continue unremedied for one (1) Business Day;
(b) by either Buyer Any Originator shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in Section 5.1(a)) or any other Transaction Document to which it is a party and such failure shall continue unremedied for thirty days after the Company, if the Closing has not taken place on earlier of (A) an Authorized Officer of such Originator obtaining actual knowledge thereof or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (iB) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b(or its assigns) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereindelivers written notice thereof;
(c) Any representation, warranty, certification or statement made by any Originator in this Agreement, any other Transaction Document or in any other document, report or information delivered pursuant hereto or thereto shall have been false or incorrect in any material respect on the date as of which made or deemed made (ior, in the case of any representation, warranty, certification or statement that by its terms refers to an earlier date, shall have been false or incorrect in any material respect on and as of such earlier date) (except that the materiality standard in this clause (c) shall not apply to any such representation or warranty that is expressly qualified by Buyer a materiality standard or contains any carve-out or exception based on a Material Adverse Effect by its express terms) unless such representation or warranty relates solely to one or more specific Pool Receivables and a Purchase Price Credit has been given for a reduction of the Purchase Price, the outstanding balance of the applicable Subordinated Note has been reduced or the Company if applicable Originator has made a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition cash payment to the expiration or termination of Buyer, in any applicable waiting period under the HSR Act or other applicable Antitrust Lawcase, as required pursuant to Section 1.5;
(d) by Buyer if: (i) Any Originator shall default in the payment when due of any principal of or interest on any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedits other Indebtedness aggregating greater than $150,000,000; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event specified in any note, agreement, indenture or other Effect document evidencing or relating to any Indebtedness aggregating greater than $150,000,000 shall have occurred occur if the effect of such event is to cause, or circumstance (with the giving of any notice or other Effect shall exist thatthe lapse of time or both) to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, in combination with any other events, circumstances such Indebtedness to become due prior to its stated maturity or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any permit termination of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent commitment to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement lend pursuant to this Section 9.1(d) with respect to any such inaccuracy instrument or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)agreement;
(e) by An Event of Bankruptcy shall occur in respect of any Originator;
(f) A Change of Control shall occur; or
(g) One or more final judgments for the Company if: (i) any payment of Buyer’s representations and warranties contained in this Agreement money shall be inaccurate as entered against any Originator in an amount in excess of the Agreement Date, or shall have become inaccurate as of a date subsequent $150,000,000 (excluding amounts covered by insurance to the Agreement Dateextent the relevant independent third-party insurer has not denied coverage therefor), individually or in the aggregate, and in each case, such that the condition set forth judgment shall continue unsatisfied or unstayed and in Section 8.1 would not be satisfied; or effect for sixty (ii60) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)days.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as an “Unmatured Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate it under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother UK Transaction Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (ior any of its officers) by Buyer under or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderin connection with this Agreement, or shall have taken any other action, having the effect of permanently restraining, enjoining UK Transaction Documents or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that Transaction Documents to which it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredparty, or any event other written information or other Effect report delivered pursuant hereto or thereto shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected prove to have been incorrect or result untrue in a Material Adverse Effectany material respect when made or deemed made or delivered; provided, however, thatthat such breach shall not constitute a Termination Event pursuant to this clause (c) if such breach, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent solely to the Agreement Date or a breach extent capable of a covenant by the Companycure, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts cured within ten (10) Business Days after Buyer notifies (or two (2) Business Days with respect to a breach in the Company information set forth in writing an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Sections 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the existence of such inaccuracy or breach (Purchase Price, the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration outstanding principal balance of the Member Cure Period, provided the Company, TopCo, applicable Subordinated Note has been reduced or the applicable MemberOriginator has made a cash payment to the Buyer, during the Member Cure Periodin any case, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement as required pursuant to this Section 9.1(d3.3(c) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)breach;
(e) by the Company if: (id) any of Buyer’s representations and warranties Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement shall or any other UK Transaction Document to which it is a party on its part to be inaccurate as of the Agreement Dateperformed or observed and such failure, or shall have become inaccurate as of a date subsequent solely to the Agreement Dateextent capable of cure, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within continue unremedied for ten (10) Business Days after the Company notifies Buyer in writing Days; or
(e) any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the existence actions sought in such proceeding (including the entry of such inaccuracy an order for relief against, or breach (the “Buyer Cure Period”)appointment of a receiver, then the Company may not terminate this Agreement under this Section 9.1(etrustee, custodian or other similar official for, it or for any substantial part of its property) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)shall occur.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may If any of the following events (each a "Termination Event") shall occur and be terminated prior to the Closingcontinuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by it hereunder in respect of Capital when due; or any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any of the mutual written consent of Buyer Transaction Documents when due hereunder or thereunder and the Company;such failure shall remain unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Buyer any Transaction Party in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect (or, to the Companyextent any such representation or warranty is qualified by materiality or Material Adverse Effect, if such representation or warranty shall prove to have been incorrect in any respect subject only to the Closing has not taken place on materiality or before 5:00 p.m. (Eastern timeMaterial Adverse Effect qualification set forth therein) on March 9, 2021 (the “End Date”)when made or deemed made; provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;or
(c) any Transaction Party shall fail to perform or observe (A) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d), 5.01(j)(iv), 5.01(n) or 5.01(v) of this Agreement or Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(l)(iv) of the Originator Purchase Agreement or (B) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (B), such failure shall remain unremedied for ten (10) days after such Transaction Party has knowledge or receives notice thereof; or
(i) by Buyer any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the Company if a court of competent jurisdiction or other Governmental Authority same shall have issued a final become due and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinpayable; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity, other Effect shall have occurred than at the election of the Originator or circumstance any Subsidiary, or other Effect shall exist that, in combination subject to any applicable grace period, enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any other events, circumstances Material Indebtedness or other Effects, would reasonably be expected any trustee or agent on its or their behalf to have or result in a cause any Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCoIndebtedness to become due, or to require the Members as of a date subsequent to the Agreement Date prepayment, repurchase, redemption or a breach of a covenant by the Companydefeasance thereof, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedits scheduled maturity; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent this clause (d)(ii) shall not apply to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such inaccuracy Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or breach prior cease to have a valid and perfected first priority security interest in the Receivables and Related Security and Collections with respect thereto or there shall exist any Adverse Claims (except as created in favor of the Seller pursuant to the expiration Originator Purchase Agreement or in favor of the Buyer Cure Period, provided Buyer, during Administrative Agent and the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement Purchasers pursuant to this Section 9.1(eAgreement) on the Receivables or the Related Security or Collections with respect thereto; or
(g) any Change of Control shall occur or the Originator shall cease to such inaccuracy own directly 100% of the issued and outstanding Equity Interests of the Seller; or
(h) there shall have occurred since the Initial Closing Date any event or breach if such inaccuracy condition which has had or breach is cured prior could reasonably be expected to have a material adverse effect on (A) the ability of any Transaction Party to perform its obligations under the Transaction Documents or (B) the collectibility of the Receivables; or
(i) the Receivable Interest Percentage exceeds the Maximum Receivable Interest Percentage unless, within two Business Days of obtaining notice or knowledge thereof, the Seller reduces the Capital from previously received Collections or other funds available to the expiration of Seller so as to reduce the Buyer Cure Period).Receivable Interest Percentage to less than or equal to the Maximum Receivable Interest Percentage; or
Appears in 1 contract
Sources: Receivables Purchase Agreement (Medco Health Solutions Inc)
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 9.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as a “Potential Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyAmortization Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate such Originator under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother Basic Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any representation or warranty made or deemed to be made by any Originator (ior any of its officers) under or in connection with this Agreement or in any other Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the Buyer or the Company Servicer to the Agent shall be untrue or incorrect in any material respect when made and, if a court capable of competent jurisdiction correction, shall not be corrected within thirty (30) days after any Senior Officer of such Originator has knowledge thereof or other Governmental Authority after written notice of such failure shall have issued a final been given by the Agent to the Buyer and nonappealable Orderthe Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any breach described above is cured in the manner provided in Section 4.5, or shall have taken any other action, having by the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition Originator’s making of an Antitrust Restraint indemnification payment under Section 10.1 on account of such breach, in each case in accordance with this Agreement (and as a condition and to the expiration or termination of any applicable waiting period extent permitted under the HSR Act or other applicable Antitrust LawRLSA), such breach shall not constitute a Termination Event;
(d) by Buyer if: (i) any of the representations and warranties of TopCoOriginator shall fail to perform or observe any other term, the Members, covenant or the Company agreement contained in this Agreement shall or any other Basic Document to which it is a party on its part to be inaccurate as performed or observed and such continues unremedied for more than thirty (30) days after any Senior Officer of the Agreement Date, such Originator has knowledge thereof or shall have become inaccurate as after written notice of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement failure shall have been breached such that given by the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent Agent to the Agreement Date or a breach of a covenant by Buyer and the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Servicer;
(e) by any Event of Bankruptcy shall occur with respect to any Originator; or
(f) the Company if: Buyer (i) any and not the Servicer), upon the occurrence and during the continuation of Buyer’s representations a “Termination Event” under that certain Amended and warranties contained in this Agreement shall be inaccurate Restated Receivables Purchase and Sale Agreement, dated as of the Agreement Datedate hereof, among Volt Management Corp., P/S Partner Solutions, Ltd., Volt and the Buyer (as amended, restated, supplemented or shall have become inaccurate as of a date subsequent otherwise modified from time to the Agreement Datetime, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure PeriodUS RPSA”), then shall have declared the Company may not terminate this Agreement under this Purchase Facility (as defined in the US RPSA) terminated as provided in Section 9.1(e9.2(a) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)US RPSA.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Upon the occurrence of any of the following events (each, a "Termination Event") and whether any such Termination Event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, the non-defaulting party (as the case may be, the "Aggrieved Party") may elect to terminate this Agreement may be terminated prior to the Closingin accordance with Section 24 hereof:
(a) a party (the "Defaulting Party") fails to comply with the applicable Standard of Conduct and such failure continues unremedied for a period of twenty (20) days (or such longer period as determined by the mutual Aggrieved Party) after the date on which written consent notice of Buyer such failure describing the nature of such failure and requesting the Company;same to be remedied shall have been given to the Defaulting Party by the Aggrieved Party; or
(b) by either Buyer the Defaulting Party fails to meet the Targeted Service Levels for two (2) consecutive fiscal quarters; or
(c) the Defaulting Party fails to observe or the Companyto perform in any material respect any of its other covenants or agreements set forth herein, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that which failure shall (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if materially and adversely, in the failure to consummate the sale reasonable judgment of the Purchased Units by Aggrieved Party, affect the End Date results from, rights of the Aggrieved Party hereunder or is caused by, a material breach by Buyer of under any of its representations, warranties, covenants or agreements contained herein, Lease and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(bcontinue unremedied for a period of thirty (30) if the failure to consummate the sale of the Purchased Units days (or such longer period as determined by the End Date results from, or is caused by, a material breach Aggrieved Party) after the date on which written notice of such failure requesting the same to be remedied shall have been given to the Defaulting Party by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated hereinAggrieved Party; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) the Defaulting Party fails generally to pay its debts as they become due; or its dissolution, termination of existence, or discontinuance of business; or the insolvency, business failure or appointment of a receiver of any part of such party's property, or an assignment by Buyer if: (i) any such party for the benefit of the representations and warranties of TopCo, the Memberscreditors, or the Company contained in this Agreement shall be inaccurate as commencement by or against it of the Agreement Dateany proceedings under any bankruptcy, reorganization or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatarrangement laws and, in the case of clauses “any involuntary proceedings, the continuance of such proceedings unstayed and in effect for sixty (i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo60) days, or the Members as assumption of a date subsequent to the Agreement Date custody or a breach control by any court of a covenant by the Company, TopCo, or competent jurisdiction over any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing substantial portion of the existence of such inaccuracy Defaulting Party's property, and the same remaining in force unstayed or breach unterminated for sixty (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d60) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);days; or
(e) by the Company if: Defaulting Party (i) enters into any transaction of Buyer’s representations merger or consolidation or any commitment with respect thereto, unless it is the surviving corporation, after giving effect to such merger or consolidation, its tangible net worth is equal to or greater than that which existed immediately prior to the merger or consolidation and warranties contained in this Agreement shall be inaccurate as the ratio of its debt to tangible net worth is not greater than that which existed immediately prior to the merger or consolidation and the person with whom it merges or consolidates is not a competitor of the Agreement Dateother party; (ii) sells, transfers, or shall have become inaccurate as otherwise disposes of a date subsequent to all or substantially all of its assets; (iii) permits any substantial change in the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedownership or control of its capital stock; or (iiiv) if any changes the form of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any organization of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)its business.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the Closingan Originator:
(a) by Such Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer Such Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2 other than Section 4.2(c).
(c) (i) by Such Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of such Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by such Originator in this Agreement, any other actionTransaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect when made or deemed made in any material respect and is not cured within five (5) Business Days following the earlier to occur of (i) notice from Buyer (or the Administrative Agent or any Purchaser, having as its collateral assignee) of such inaccuracy, or (ii) the effect date on which a Responsible Officer of permanently restrainingsuch Originator (or Performance Guarantor, enjoining as the case may be) otherwise becomes aware of such inaccuracy, provided that the materiality threshold in this subsection shall not be applicable with respect to any representation or otherwise prohibiting warranty which itself contains a materiality threshold although the sale five (5) Business Day cure period shall continue to apply.
(e) Any Originator shall default, or the Performance Guarantor or any of its Subsidiaries (other than an Originator) shall default, in the payment when due of any principal or of or interest on any Material Indebtedness; or any event or condition shall occur which results in the acceleration of the Purchased Units maturity of any such Material Indebtedness.
(f) (i) Such Originator, Performance Guarantor or any of their respective Significant Subsidiaries (as contemplated hereindefined in the RPM Credit Agreement) shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against such Originator, Performance Guarantor or any of their respective Significant Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, or seeking the imposition entry of an Antitrust Restraint as order for relief or the appointment of a condition to the expiration or termination of any applicable waiting period under the HSR Act receiver, trustee or other applicable Antitrust Law;
(d) by Buyer if: (i) similar official for it or any substantial part of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; its property or (iii) any Material Adverse Effect shall have occurredsuch Originator, Performance Guarantor or any event or other Effect of their respective Significant Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations actions set forth in the foregoing clauses (i) or (ii) of this subsection (f).
(g) A Change of Control shall occur with respect to such Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $75,000,000, individually or in the aggregate, shall be entered against such Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within judgment shall continue unsatisfied and in effect for ten (10) Business Days after Buyer notifies the Company in writing consecutive days without a stay of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Sources: Receivables Sale Agreement (RPM International Inc/De/)
Termination Events. This Agreement may If any of the following events (each, a “Termination Event”) shall occur and be terminated prior to the Closingcontinuing:
(a) by the mutual written consent of Buyer and the Company;
(b) by either Buyer Borrower or the Company, if Servicer shall default in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (payment of any amount required to be made under the “End Date”)terms of this Agreement; provided, that or
(i) Buyer the Borrower shall not be permitted fail to terminate perform or observe in any material respect any other covenant or other agreement of the Borrower set forth in this Agreement pursuant and any other Transaction Document to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results fromwhich it is a party, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company Originator shall not be permitted fail to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale perform or observe in any material respect any term, covenant or agreement of the Purchased Units Originator set forth in any other Transaction Document to which it is a party, in each case when such failure continues unremedied for more than 20 days after written notice thereof shall have been given by the End Date results from, or is caused by, a material breach by the Company, TopCo, Agent or any Member of any of its representations, warranties, covenants or agreements contained herein;Secured Party to such Person; or
(c) an Insolvency Event shall occur with respect to the Borrower or the Originator; or
(d) a Servicer Termination Event occurs; or
(e) any representation or warranty made or deemed made hereunder shall prove to be incorrect as of the time when the same shall have been made, and such incorrect representation or warranty shall not have been eliminated or otherwise cured within a period of 20 days after written notice thereof shall have been given by the Agent or any Secured Party to the Borrower; or
(f) the amount of Advances Outstanding shall exceed the Maximum Availability, for more than three consecutive Business Days; or
(g) an Overcollateralization Shortfall exists and continues unremedied for a period of three Business Days; or
(h) a Required Equity Shortfall exists and continues unremedied for a period of three Business Days; or
(i) by Buyer the Borrower or the Company if Originator agrees or consents to, or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy in whole or in part that could have a material adverse effect upon the Loans or the interests of the Lenders without the prior written consent of the Agent and each Lender; or
(j) any Change in Control of the Borrower or Originator occurs; or
(k) on each day during a period of five consecutive days, either (i) the aggregate Hedge Notional Amount is less than the product of the Hedge Percentage on such day and the Hedge Amount on that day, or (ii) any Hedge Transaction fails to meet the requirements set forth in subsection 5.2(a); or
(l) the Trustee on behalf of the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(m) the Rolling Three-Month Portfolio Yield does not equal or exceed 5.0% and such failure continues for a period of 15 consecutive days; or
(n) the Rolling Three-Month Default Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $22,600,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(o) the Rolling Three-Month Charged-Off Ratio shall exceed the percentage equivalent of a fraction, the numerator of which is $15,100,000 and the denominator of which is the Aggregate Outstanding Loan Balance; or
(p) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 15.0%; or
(q) both ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(r) the Borrower or the Originator defaults in making any payment required to be made with respect to any material recourse debt or other obligation to which either is a party and such default is not cured within the relevant cure period or any event or condition shall occur or exist that would cause or permit the acceleration of such recourse debt or other obligation, whether or not such event or condition has been waived or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to maturity; or
(i) a final judgment for the payment of money in excess of 10% of the Tangible Net Worth of the Originator shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall not have either: (1) discharged or other Governmental Authority shall have issued a final and nonappealable Orderprovided for the discharge of such judgment in accordance with its terms, or shall have taken any other action, having (2) perfected a timely appeal of such judgment and caused the effect of permanently restraining, enjoining execution thereof to be stayed (by supersedes or otherwise prohibiting during the sale pendency of the Purchased Units as contemplated herein; such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $1,000,000 or $100,000, respectively, in settlement of any litigation; or
(t) the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by Buyer if a Governmental Authority provides notice that it is seekingthe Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or any rules, regulations or intends to seekorders issued by the SEC thereunder; or
(u) the business and other activities of the Borrower or the Originator, including but not limited to, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any acceptance of the representations and warranties of TopCoAdvances by the Borrower made by the Lenders, the Members, application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Company contained Originator is a party result in this Agreement shall be inaccurate as of a violation by the Agreement DateOriginator, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredBorrower, or any event other person or other Effect shall have occurred entity of the 1940 Act or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in the rules and regulations promulgated thereunder; or
(v) a Material Adverse Effect; provided, however, that, Change in the case operations of clauses “the Originator, the Servicer or the Borrower shall occur; or
(i)” and “(ii)” only, if an inaccuracy w) a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the representations legal conclusions made in the true sale, non-consolidation and warranties perfection opinions delivered in connection with the Transaction Documents to be incorrect; or
(x) the Borrower or its Affiliates shall enter into a binding engagement letter or similar letter of intent with any third party contemplating a structured financing transaction including the Company, TopCo, Collateral or assets comparable to the Members Loans included in the Collateral as of a any date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration date on which the Borrower or its Affiliates shall have consummated (or irrevocably committed to consummate) one or more structured financing transactions in which BMO or an Affiliate thereof shall act as administrative agent or sole or lead initial purchaser (or in a comparable capacity) representing an aggregate notional amount of the Member Cure Periodat least $250,000,000, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues if BMO shall have agreed to exercise reasonable efforts negotiate in good faith to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior offer to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, Borrower or shall have become inaccurate as of its affiliates substantially similar terms for a date subsequent structured financing transaction comparable to the Agreement Date, financing contemplated by such that the condition set forth in Section 8.1 would not be satisfied; engagement letter or letter of intent (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy similar agreement or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Periodundertaking).
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the ClosingOriginator:
(a) by The Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer The Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2.
(c) (i) by The Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of the Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by the Originator in this Agreement, any other actionTransaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect or misleading when made or deemed made in any material respect, having provided that the effect materiality threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(e) The Originator shall default, or the Performance Guarantor or any of permanently restrainingits Subsidiaries (other than the Originator) shall default, enjoining in the payment when due of any principal or otherwise prohibiting of or interest on any Material Indebtedness or shall fail to observe or perform any other agreement or condition relating to any such Material Indebtedness and such default has not been waived by the sale applicable lenders before the expiration of any applicable grace periods; or any other event or condition shall occur which results in a default under any such Material Indebtedness.
(f) (i) The Originator, Performance Guarantor or any of their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the Purchased Units as contemplated hereinbenefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against the Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, and in the imposition of an Antitrust Restraint as a condition to the expiration or termination case of any applicable waiting such proceeding instituted against (but not instituted by) it, either such proceeding shall remain undismissed or unstayed for a period under the HSR Act of 30 days, or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCoactions sought in such proceeding (including, without limitation, the Members, entry of an order for relief or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as appointment of a date subsequent to the Agreement Datereceiver, such that the condition set forth in Section 7.1 would not be satisfied; (iitrustee or other similar official for it or any substantial part of its property) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; occur or (iii) any Material Adverse Effect shall have occurredthe Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any subsection (f).
(g) A Change of Buyer’s representations and warranties as of a date subsequent to the Agreement Date Control or a breach Credit Agreement Change of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Control shall occur with respect to the Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $15,000,000, individually or in the aggregate, shall be entered against the Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may Each of the following events shall be terminated prior to the Closinga "Termination Event" hereunder:
(ai) Servicer (if API) shall fail to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for three Business Days or (ii) either Servicer (if API) or Seller shall fail to make any payment or deposit to be made by the mutual written consent of Buyer and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Buyer Seller, any Originator or the Company, if the Closing has not taken place on Servicer (or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representationstheir respective officers) under or in connection with this Agreement, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this any other Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Document or any Member of Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any of its representations, warranties, covenants or agreements contained herein;material respect when made; or
(c) Seller, API or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document on its part to be performed or observed and any such failure shall remain unremedied for ten Business Days after written notice thereof shall have been given by the Agent to Seller or API; or
(d) A default shall have occurred and be continuing under or any instrument, contract, indenture or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $2,000,000 of, or guaranteed by, API or any Affiliate of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the giving of notice) would permit acceleration of the maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or
(e) The average of the Delinquency Ratios for any three successive Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall have occurred and remained continuing with respect to Seller, API, any Originator or any Affiliate of any thereof; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Buyer Seller or API to the Company if a court Agent and Purchasers prior to the date of competent jurisdiction execution and delivery of this Agreement is pending against Seller, API or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; Originator or (ii) by Buyer if a Governmental Authority provides notice that it is seekingany material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or intends to seekgovernmental proceedings so disclosed, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatwhich, in the case of clauses “clause (i)” and “) or (ii)” only, if an inaccuracy in the reasonable opinion of the Agent is likely to materially adversely affect the financial position or business of Seller, API or any Originator or impair the ability of Seller, API or any Originator to perform its obligations under this Agreement or any other Agreement Document; or
(h) The Aggregate Participation Amounts shall exceed the Participation Amounts Limit, or that portion of the Aggregate Purchasers' Investments that is funded in Approved Currencies other than U.S. Dollars exceeds the Foreign Currency Limit, or the aggregate Unpaid Balance of Receivables denominated in any Approved Currency is less than the sum of the Purchasers' Investments of each Undivided Interest funded in such Approved Currency; or
(i) The average of the Default Ratios for any three successive Month End Dates exceeds 7.25%; or
(j) There shall have occurred any event which materially
(i) (y) shall not be true at any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the representations assets of Seller or any Originator and warranties of the Company, TopCosuch lien shall not have been released and such lien shall not have been released within 8 Business Days, or the Members as Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a date subsequent lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or any Originator and such lien shall not have been released within 8 Business Days; or
(l) One Person, or a group of Persons acting in concert that are unacceptable to the Agreement Date Agent or the Majority Purchasers obtain, in one or more transactions, control of more than 50% of the issued and outstanding shares of capital stock of API having the power to elect a breach majority of a covenant by the Company, TopCo, directors of API; or Seller or any Member is curable by the Company, TopCo, or such Member through the use Originator other than API ceases to be a wholly-owned Subsidiary of reasonable efforts within ten API; or
(10m) Business Days after Buyer notifies the Company in writing The average of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Dilution Ratios for any three successive Month End Dates exceeds 8%;
(en) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as The average of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedNet Charge-Off Ratios for any three successive Month End Dates exceeds 2%; or or
(iio) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfiedThe Seller's Tangible Net Worth is less than $18,300,000; provided, however, that if an inaccuracy in any of Buyer’s representations or
(p) A Purchase and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Sale Termination Event occurs.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) a Pledgor shall fail to make any payment or deposit to be made by it hereunder or under the mutual written consent of Buyer and the Company;Receivables Purchase Agreement when due hereunder or thereunder; or
(b) any representation or warranty made by either Buyer a Pledgor, the Seller or an Eligible Originator in, as applicable, this Agreement, the CompanyReceivables Purchase Agreement, if the Closing has not taken place on any other Transaction Document to which it is a party or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made and shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if have been cured and corrected for a period of 30 days after the failure to consummate the sale earlier of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (iix) the Company date it first became known to any officer of a Pledgor or (y) the date on which written notice thereof shall not be permitted have been given to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units a Pledgor by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;other party hereto; or
(c) any certification or statement made by a Pledgor, the Seller or an Eligible Originator in, as applicable, this Agreement, the Receivables Purchase Agreement, any other Transaction Document to which it is a party or in any or any certificate or report delivered by it pursuant to any of the foregoing shall prove to have been incorrect in any material respect when made or deemed made and a Material Adverse Effect shall result which shall not have been cured and corrected for a period of 30 days after the earlier of (x) the date it first became known to any officer of a Pledgor or (y) the date on which written notice thereof shall have been given to a Pledgor by any other party hereto; or
(d) a Pledgor shall default in any material respect in the performance of any payment or undertaking (other than those covered by clause (a) above) (i) by Buyer to be performed or the Company if a court of competent jurisdiction observed under Section 5.1(a)(vi), 5.1(h), 5.1(l), 5.2(a), (c), (d), (e) or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; (f) or (ii) to be performed or observed under any other provision hereof and such failure shall remain unremedied for a period of thirty (30) days after the earlier of (x) the date it first became known to any officer of a Pledgor or (y) the date on which written notice thereof shall have been given to the a Pledgor by Buyer if any other party hereto; or
(e) failure of a Governmental Authority provides notice that it Pledgor to pay when due any amounts due under any agreement to which such Person is seeking, a party and under which any Indebtedness is governed; failure of the Parent or intends the Seller to seekpay when due any amounts due under any agreement to which any such Person is a party and under which any Indebtedness greater than $5,000,000 is governed; or the default by a Pledgor, the imposition Parent or the Seller in the performance of an Antitrust Restraint as any term, provision or condition contained in any agreement to which any such Person is a condition party and under which any Indebtedness owing by a Pledgor, the Parent or the Seller was created or is governed and for which in the case of the Parent or the Seller the amount of such Indebtedness is greater than $5,000,000; or any Indebtedness owing by a Pledgor, the Parent or the Seller greater than $5,000,000 shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the expiration date of maturity thereof; or
(f) any Event of Bankruptcy shall occur with respect to a Pledgor, Parent or termination the Seller; or
(g) the Agent, on behalf of the Company and the Bank Investors, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Affected Assets free and clear of any applicable waiting period under the HSR Act or other applicable Antitrust Law;Adverse Claims (except as otherwise contemplated herein); or
(dh) by Buyer if: a Master Servicer Default shall have occurred; or
(i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Receivables Purchase Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedterminated; or or
(iiij) any Material Adverse Effect a Revolving Credit Facility Default shall have occurred, ; or
(k) a Pledgor or the Parent shall enter into any event transaction or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, thatmerger whereby it is not the surviving entity and where, in the case of clauses “the Parent, the surviving entity is not acceptable to the Agent; or
(l) there shall have occurred any Material Adverse Effect; or
(m) at any time, the Percentage Factor is greater than the Maximum Percentage Factor and such imbalance is not cured on or prior to the next succeeding Payment Date; or
(n) after giving effect to any Payment Date, the Percentage Factor is greater than the Maximum Percentage Factor;
(o) the Net Investment is greater than the Maximum Net Investment; or
(p) at any time, the Net Asset Test is not met; or
(q) at any time following the first Take-Out, the sum of (i)” and “) the Pool Market Value as of its date of calculation, (ii)” only) the amount, if an inaccuracy any, which would be due to the Pledgors in any the event that each outstanding Hedging Agreement was terminated on such date and (iii) the aggregate amount on deposit in the Accounts (other than the Reserve Account) on such date is less than 102% of the representations sum of (1) the Net Investment, (2) the aggregate unpaid Servicer Advances, (3) all accrued and warranties unpaid Carrying Costs as of such date, (4) all Hedge Payments (including any termination payments in the event that each outstanding Hedging Agreement was terminated on such date) due on such date and (5) an amount equal to the positive difference, if any, between the Specified Reserve Account Requirement as of such date and the balance of the Company, TopCo, or the Members Reserve Account as of a date subsequent to the Agreement Date or a breach of a covenant by the Companysuch date, TopCo, or any Member is curable by the Company, TopCo, or and such Member through the use of reasonable efforts within deficiency shall continue unremedied for ten (10) Business Days after Buyer notifies Days; or
(r) A Take-Out which reduces the Company in writing Net Investment to an amount that is 30% or less of the existence Net Investment immediately prior to such Take-Out has not occurred for a period of such inaccuracy or breach twelve consecutive months (the “Member Cure Period”first such twelve-month period commencing as of the closing of the 1999-1 term securitization); or
(s) at any time the Receivables are not subject to Hedging Agreements in accordance with Section 2.15, then Buyer may and such failure is not terminate this Agreement under this Section 9.1(dcured within five Business Days of the earlier of (x) as the date it first became known to any officer of a result of Pledgor or (y) the date on which written notice thereof shall have been given to the a Pledgor by any other party hereto; or
(t) the Net Credit Loss for any calendar quarter shall exceed 3.0% on an annualized basis; or the three-month rolling average Delinquency Ratio shall exceed 11.0%; 94 100 provided, that such inaccuracy or breach prior to Delinquency Ratio test (i) shall not be effective through and including the expiration of the Member Cure Periodfirst full three Collection Periods following each Take-Out, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any for the fourth full Collection Period following each Take-Out shall be the Delinquency Ratio for such Collection Period and (ii) for the fifth full Collection Period following each Take-Out shall be the average of Buyer’s covenants contained the Delinquency Ratio for such Collection Period and the immediately preceding Collection Period; or
(u) on the date on which the first Take-Out is consummated the amount on deposit in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; Reserve Account is less than the Specified Reserve Account Requirement (based upon the most recent available data), provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may Termination Event shall not terminate this Agreement occur under this Section 9.1(e7.1(u) as a result of if on such inaccuracy or breach prior date the Net Investment is reduced by an amount equal to any such deficiency in the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Reserve Account.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Unicapital Corp)
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as an “Unmatured Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate it under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother Transaction Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (ior any of its officers) by Buyer under or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderin connection with this Agreement, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that Transaction Documents to which it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredparty, or any event other written information or other Effect report delivered pursuant hereto or thereto shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected prove to have been incorrect or result untrue in a Material Adverse Effectany material respect when made or deemed made or delivered; provided, however, thatthat such breach shall not constitute a Termination Event pursuant to this clause (c) if such breach, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent solely to the Agreement Date or a breach extent capable of a covenant by the Companycure, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts cured within ten (10) Business Days after Buyer notifies (or two (2) Business Days with respect to a breach in the Company information set forth in writing an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Section 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the existence of such inaccuracy or breach (Purchase Price, the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration outstanding principal balance of the Member Cure Period, provided the Company, TopCo, applicable Subordinated Note has been reduced or the applicable MemberOriginator has made a cash payment to the Buyer, during the Member Cure Periodin any case, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement as required pursuant to this Section 9.1(d3.3(c) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)breach;
(e) by the Company if: (id) any of Buyer’s representations and warranties Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement shall or any other Transaction Document to which it is a party on its part to be inaccurate as of the Agreement Dateperformed or observed and such failure, or shall have become inaccurate as of a date subsequent solely to the Agreement Dateextent capable of cure, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within continue unremedied for ten (10) Business Days after the Company notifies Buyer in writing Days; or
(e) any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the existence actions sought in such proceeding (including the entry of such inaccuracy an order for relief against, or breach (the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur. In this Agreement, “Buyer Cure Period”)Insolvency Proceeding” includes, then for greater certainty, any case, action or proceeding under the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)Insolvency Statutes.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to Any one or more of the Closingfollowing shall constitute a “Servicer Default” hereunder:
(a) any failure by the mutual written consent of Buyer and Servicer to make any payment, transfer or deposit into the Company;Collection Account as required by this Agreement (including Section 2.6) or any other Loan Document that is not remedied within two Business Days thereafter; or
(b) any failure by either Buyer the Servicer to deliver any Monthly Report or Borrowing Base Certificate when due pursuant to Section 4.2 that is not remedied within three Business Days thereafter; or
(c) default in the Companyobservance or performance by the Servicer of any other provision hereof or of any other Loan Document (other than any such failure which would constitute a Servicer Default under any other paragraph, if clause or sub-clause of this Section 6.1) that is not remedied within 30 days after the Closing has not taken place earlier of the date on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that which (i) Buyer such failure shall not be permitted first become known to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale any officer of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, Servicer and (ii) written notice thereof is given to the Company shall not be permitted Servicer by the Administrative Agent or any Lender; or
(d) any representation or warranty made by the Servicer herein or in any other Loan Document, or in any statement or certificate furnished by it pursuant hereto or thereto, or in connection with any extension of credit made hereunder, proves to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale have been false or misleading in any material respect as of the Purchased Units by date of the End Date results fromissuance or making, deemed making or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;furnishing thereof; or
(ce) (i) by Buyer this Agreement shall for any reason not be or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final cease to be in full force and nonappealable Ordereffect, or shall have taken any other actionis declared to be null and void, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) the Servicer takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by Buyer if it or any of its obligations thereunder or shall contest the validity or perfection of any Lien in any Collateral purported to be covered by the Collateral Documents; or
(f) any default shall occur (beyond the applicable grace period with respect thereto) under the Priority Credit Agreement that (x) is a Governmental Authority provides notice that it is seekingdefault in the payment when due of any principal of or interest on or any other amount with respect to the Indebtedness thereunder or (y) results in the acceleration of the Indebtedness thereunder, the exercise of foreclosure or other proceedings or the enforcement of any other remedies thereunder; or
(g) any judgment or judgments, writ or writs, or intends to seekwarrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of the imposition greater of an Antitrust Restraint as a condition (x) $32,835,000 and (y) 15% of Consolidated Adjusted EBITDA (to the expiration extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment, writ, warrant or similar process and has not denied or failed to acknowledge coverage) shall be entered or filed against the Servicer or against any of the Servicer’s Property and remains unvacated, unbonded, unstayed or unsatisfied for a period of 60 consecutive days; or
(i) the dissolution or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any existence of the representations and warranties of TopCoServicer, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any Change of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; Control has occurred or (iii) any “Change of Control” under (and as defined in) the Priority Credit Agreement has occurred; or
(i) the Servicer shall (i) have entered involuntarily against it an order for relief under the Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any action in contemplation or furtherance of any matter described in clauses (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 6.1(j) hereof; or
(j) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Servicer or any substantial part of its Property, or a proceeding described in Section 6.1(i)(v) shall be instituted against the Servicer, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 days; or
(k) any Material Adverse Effect shall have has occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);or
(e) by the Company if: (il) any Event of Buyer’s representations Default has occurred and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)continuing.
Appears in 1 contract
Sources: Servicing Agreement (Priority Technology Holdings, Inc.)
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as an “Unmatured Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate it under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother Transaction Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (ior any of its officers) by Buyer under or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderin connection with this Agreement, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that Transaction Documents to which it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredparty, or any event other written information or other Effect report delivered pursuant hereto or thereto shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected prove to have been incorrect or result untrue in a Material Adverse Effectany material respect when made or deemed made or delivered; provided, however, thatthat such breach shall not constitute an Termination Event pursuant to this clause (c) if such breach, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent solely to the Agreement Date or a breach extent capable of a covenant by the Companycure, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts cured within ten (10) Business Days after Buyer notifies (or two (2) Business Days with respect to a breach in the Company information set forth in writing an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Sections 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the existence of such inaccuracy or breach (Purchase Price, the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration outstanding principal balance of the Member Cure Period, provided the Company, TopCo, applicable Subordinated Note has been reduced or the applicable MemberOriginator has made a cash payment to the Buyer, during the Member Cure Periodin any case, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement as required pursuant to this Section 9.1(d3.4(c) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)breach;
(e) by the Company if: (id) any of Buyer’s representations and warranties Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement shall or any other Transaction Document to which it is a party on its part to be inaccurate as of the Agreement Dateperformed or observed and such failure, or shall have become inaccurate as of a date subsequent solely to the Agreement Dateextent capable of cure, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within continue unremedied for ten (10) Business Days after the Company notifies Buyer in writing Days; or
(e) any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the existence actions sought in such proceeding (including the entry of such inaccuracy an order for relief against, or breach (the “Buyer Cure Period”)appointment of a receiver, then the Company may not terminate this Agreement under this Section 9.1(etrustee, custodian or other similar official for, it or for any substantial part of its property) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)shall occur.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. (a) This Agreement may be terminated at any time prior to Closing upon prior written notice by the Closingparty electing to terminate this Agreement to the other party:
(ai) by the mutual written consent agreement of Buyer HCA and the CompanyPurchaser (expressed in writing);
(bii) by either Buyer HCA or Purchaser if any permanent injunction, Court Order or other order, decree or ruling of any court or other Governmental Authority of competent jurisdiction permanently restraining, enjoining or otherwise preventing the Companyconsummation of the transactions contemplated hereby shall have been issued and become final and non-appealable;
(iii) subject to the provisions of Section 10.1(b), by either HCA or Purchaser if the Closing has shall not taken place have occurred by July 31, 2001; provided, however, that the right to terminate this Agreement under this Section 10.1(c) shall not be available to any party whose breach of its representations and warranties in this Agreement or whose failure to perform any of its covenants and agreements under this Agreement shall have been a contributing cause of, or resulted in, the failure of the Closing to occur on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”)such date; provided, that (i) Buyer shall not be permitted the right to terminate this Agreement pursuant to this Section 9.1(b10.1(a)(iii) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted available to terminate any party whose failure to fulfill any material obligation under this Agreement pursuant or whose failure to this Section 9.1(b) if use all good faith efforts to promptly cause the satisfaction of the conditions under Sections 7 and 8 has been the cause of, or resulted in, the failure to consummate the sale of the Purchased Units Closing to occur by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinsuch date;
(c) (iiv) by Buyer HCA upon a breach in any material respect of any covenant or agreement on the Company part of the Purchaser set forth in this Agreement, or if a court any representation or warranty of competent jurisdiction or other Governmental Authority the Purchaser shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, been breached or shall have become inaccurate as of a date subsequent to the Agreement Dateuntrue, in any such case that the condition conditions set forth in Section 7.1 Sections 8.1 and 8.2 would not be satisfied; incapable of being satisfied by July 31, 2001 (ii) or any later date as such date may be otherwise extended by mutual agreement of the covenants parties); or
(v) by Purchaser upon a breach in any material respect of any covenant or agreement on the Company, TopCopart of any Seller set forth in this Agreement, or the Members contained in this Agreement if any representation or warranty of any Seller shall have been breached or shall have become untrue in any such case such that the condition conditions set forth in Section Sections 7.1 and 7.2 would not be satisfied; or incapable of being satisfied by July 31, 2001 (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably later date as such date may be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any otherwise extended by mutual agreement of the representations parties).
(b) Notwithstanding the provisions of Section 10.1(a)(iii) hereof, HCA and warranties Purchaser each agrees that if all of the Company, TopCo, conditions to such party's obligation to close the transaction contemplated hereby have been satisfied or the Members waived as of a date subsequent to July 31, 2001 other than the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing receipt of the existence of such inaccuracy Governmental Approvals listed in Schedules 5.1 and 6.2 or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Periodwaiting period with respect to any such Governmental Approval, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not neither HCA nor Purchaser shall terminate this Agreement pursuant without first providing the other party with ten days' written notice of its intention to this Section 9.1(d) terminate. During such ten-day period, HCA and Purchaser each shall cause its counsel to confer with respect the other party's counsel in an attempt to agree on the likelihood of a timely and successful resolution of all such inaccuracy or breach if such inaccuracy or breach is cured prior issues relating to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement applicable Governmental Approval or waiting period. Following such ten-day period, neither HCA nor Purchaser shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under unless such Party reasonably believes, based upon the likely time period necessary to resolve the applicable Governmental Approval issues, the likelihood of successfully resolving such Governmental Approvals without conditions, obligations or agreements which adversely effect the party, and other relevant factors, that not terminating this Section 9.1(e) as a result of such inaccuracy or breach prior Agreement could cause effects which are material and adverse to it in comparison to the expiration size and nature of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)transactions contemplated hereby.
Appears in 1 contract
Termination Events. This Agreement may The following events shall be terminated prior to the ClosingTermination Events (“Termination Events”) hereunder:
(a) (i) any failure on the part of the Seller or the Originator duly to observe or perform in any material respect any covenants or agreements of the Seller or the Originator set forth in this Agreement or the other Transaction Documents to which the Seller or the Originator is a party (other than those specifically addressed below) or (ii) any breach by the mutual Seller or the Originator of any representation or warranty of the Seller or the Originator under any Transaction Document to which it is a party which has a Material Adverse Effect on the Secured Parties and in the case of clauses (i) or (ii) continues unremedied for a period of 30 days (if such failure is capable of being cured) after the earlier to occur of (x) the date on which written consent notice of Buyer such failure requiring the same to be remedied shall have been given to the Seller or the Originator by the Administrative Agent or any Purchaser Agent and (y) the Company;date on which the Seller or the Originator becomes aware thereof; or
(b) by either Buyer the occurrence of an Insolvency Event relating to the Seller or the CompanyOriginator; or
(c) a Servicer Default occurs and is continuing (other than a Servicer Default described under Section 6.15(e), if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer or (j) the sole remedy for which shall not be permitted to terminate this Agreement pursuant replace MCG Capital as Servicer); or
(i) any Transaction Document, or any Lien granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to this Section 9.1(b) if be effective or cease to be the failure to consummate the sale legally valid, binding and enforceable obligation of the Purchased Units by Seller, the End Date results fromDepositor, the Originator or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and the Servicer,
(ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if Seller, the failure to consummate Depositor, the sale of Originator, the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Servicer or any Member other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any of its representationsTransaction Document or any Lien thereunder, warranties, covenants or agreements contained herein;or
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredsecurity interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a first priority perfected security interest; or
(e) other than in accordance with Sections 5.1(h) or 5.4(f) hereof, the Originator, the Seller or the Servicer agrees or consents to, or otherwise permits to occur, any event amendment, modification, change, supplement or other Effect shall have occurred rescission of or circumstance to the Credit and Collection Policy in whole or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would part that could be reasonably be expected to have a material adverse effect upon the Assets or result interest therein of the Trustee, for the benefit of the Secured Parties, without the prior written consent of the Administrative Agent and the Purchaser Agents; or
(f) the Advances Outstanding on any day exceeds the lesser of the Facility Amount and Maximum Availability and such condition continues unremedied for two Business Days or; or
(g) the Seller fails to enter into a required Hedge Transaction pursuant to this Agreement, and such failure continues unremedied for five Business Days; or
(h) as of any Determination Date, the Average Pool Delinquency Ratio exceeds 4.0%; or
(i) as of any Determination Date, the Average Pool Charged-Off Ratio exceeds 2.0%; or
(j) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 7.5%; or
(k) as of any Determination Date, the Pool Yield does not equal or exceed the Minimum Pool Yield and the same continues unremedied to the following Determination Date; or
(l) on any day an Overcollateralization Shortfall exists and the same continues unremedied for two Business Days; or
(m) the Seller, the Depositor or the Originator shall be in payment default, after giving effect to any applicable grace or cure period, required by the terms of any agreement for borrowed money to which any such entity is a Material Adverse Effect; provided, however, that, party for an amount exceeding $1,000,000 in the case of clauses “(i)” the Seller or the Depositor and “(ii)” only, if an inaccuracy $10,000,000 in any the case of the representations and warranties Originator; or
(n) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the Companypayment of money in excess of $10,000,000, TopCoindividually or in the aggregate, against the Originator, or $2,000,000 against the Members as of a date subsequent to Seller, individually or in the Agreement Date or a breach of a covenant aggregate, which is not fully covered by applicable insurance and the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, Originator or the applicable MemberSeller, during as the Member Cure Periodcase may be, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may shall not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: have either (i) discharged or provided for the discharge of any of Buyer’s representations and warranties contained such judgment, decree or order in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; accordance with its terms or (ii) if perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal; or
(o) the Seller fails to pay the Aggregate Unpaids on or prior to the Legal Final Maturity Date; or
(p) the Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Seller or the Originator and such Lien shall not have been released within five Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of Buyer’s covenants contained in this Agreement the assets of the Seller or the Originator and such Lien shall not have been breached such released within five Business Days; or
(q) a regulatory, tax or accounting body has issued a final order that the condition set forth activities of the Seller contemplated hereby be terminated; or
(r) failure on the part of the Seller or the Originator to make any payment or deposit (including without limitation with respect to Collections) required by the terms of any Transaction Document on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or
(s) the Seller shall become required to register as an “investment company” within the meaning of the 40 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 40 Act; or
(t) the Seller amends the Trust Agreement without the prior written consent of the Administrative Agent;
(u) as of any date of determination, the Diversity Score of the Eligible Loans in Section 8.2 would the Asset Pool is (i) below 8 and is not be satisfiedincreased to 8 or above within 60 days or (ii) is below 6 and is not increased to 8 or above within 30 days;
(v) as of any date of determination, the ▇▇▇▇▇’▇ Weighted Average Rating of the Eligible Loans in the Asset Pool is greater than 4300 and is not reduced below 4300 within (i) 30 days or (ii) 120 days in the event that the ▇▇▇▇▇’▇ Weighted Average Rating is above 4300 due to revisions by ▇▇▇▇▇’▇ in its “Caa1” rating assumption pursuant to clause (ii) of the definition of ▇▇▇▇▇’▇ Weighted Average Rating Factor; or
(w) as of any date of determination, the S&P CDO Evaluator Test is not satisfied and remains unsatisfied for a period of 60 days; provided, howeverthat, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing each of the existence of Servicer and the Administrative Agent reserves the right during such inaccuracy or breach (60 day period to request that S&P recalculate and reevaluate the key assumptions utilized in the S&P CDO Evaluator Test, and in the event the Asset Pool achieves an “Buyer Cure Period”), A” rating by S&P at such time then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)foregoing Termination Event shall be deemed cured.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior Each of the following events or occurrences described in this Section 9.1 shall constitute a “Termination Event” (each event which with notice or the passage of time or both would become a Termination Event being referred to the Closing:herein as a “Potential Termination Event”):
(a) by the mutual written consent of Buyer and the CompanyAmortization Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Buyer or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate such Originator under this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinother Basic Document to which it is a party and such failure shall remain unremedied for two (2) Business Days;
(c) any representation or warranty made or deemed to be made by any Originator (ior any of its officers) under or in connection with this Agreement or in any other Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the Buyer or the Company Servicer to the Agent shall be untrue or incorrect in any material respect when made and, if a court capable of competent jurisdiction correction, shall not be corrected within thirty (30) days after any Senior Officer of such Originator has knowledge thereof or other Governmental Authority after written notice of such failure shall have issued a final been given by the Agent to the Buyer and nonappealable Orderthe Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any breach described above is cured in the manner provided in Section 4.5, or shall have taken any other action, having by the effect of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition Originator’s making of an Antitrust Restraint indemnification payment under Section 10.1 on account of such breach, in each case in accordance with this Agreement (and as a condition and to the expiration or termination of any applicable waiting period extent permitted under the HSR Act or other applicable Antitrust LawRLSA), such breach shall not constitute a Termination Event;
(d) by Buyer if: (i) any of the representations and warranties of TopCoOriginator shall fail to perform or observe any other term, the Members, covenant or the Company agreement contained in this Agreement shall or any other Basic Document to which it is a party on its part to be inaccurate as performed or observed and such continues unremedied for more than thirty (30) days after any Senior Officer of the Agreement Date, such Originator has knowledge thereof or shall have become inaccurate as after written notice of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement failure shall have been breached such that given by the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent Agent to the Agreement Date or a breach of a covenant by Buyer and the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Servicer;
(e) by any Event of Bankruptcy shall occur with respect to any Originator; or
(f) the Company if: Buyer (i) any and not the Servicer), upon the occurrence and during the continuation of Buyer’s representations a “Termination Event” under that certain Receivables Purchase and warranties contained in this Agreement shall be inaccurate Sale Agreement, dated as of the Agreement Amendment Effective Date, among Volt Consulting Group Limited, Volt Europe Limited, Volt and the Buyer (as amended, restated, supplemented or shall have become inaccurate as of a date subsequent otherwise modified from time to the Agreement Datetime, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure PeriodUK RPSA”), then shall have declared the Company may not terminate this Agreement under this Purchase Facility (as defined in the UK RPSA) terminated as provided in Section 9.1(e9.2(a) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)UK RPSA.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Any of the following acts or occurrences shall constitute a Termination Event under this Agreement may be terminated prior to the Closing:(each, a “Termination Event”):
(a) The Servicer shall fail to deposit to the Collateral Account any Asset Pool Proceeds received by the mutual written consent of Buyer Servicer as and when required in accordance with this Agreement, or the CompanyServicer shall fail to pay to the Lender any payment in the amount and on the date required to be made in accordance with this Agreement, and any such failure shall continue for more than two (2) Business Days;
(b) by either Buyer The Servicer shall fail to observe or the Company, if the Closing has not taken place on perform in any respect any covenant or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not agreement required to be permitted to terminate performed thereby under this Agreement pursuant or under any other Loan Document to this Section 9.1(b) if which the failure to consummate the sale of the Purchased Units by the End Date results from, or Servicer is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained hereinparty, and the continuance of such default or breach for a period of fifteen (ii15) calendar days after there has been given to the Company shall not Servicer a written notice specifying the default or breach and requiring it to be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinremedied;
(c) (i) by Buyer Any representation, warranty or statement of the Company if a court Servicer made in this Agreement shall prove to have been incorrect in any material respect, or any representation, warranty or statement of competent jurisdiction the Servicer in any certificate, report or other Governmental Authority statement, in writing or orally, delivered to any party hereto and pursuant hereto or thereto, shall have issued a final and nonappealable Order, not satisfy the standard applicable to such representation or shall have taken any other action, having the effect warranty as set forth in Section 5.1(k) of permanently restraining, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawthis Agreement;
(d) The Servicer or MCM Capital Group shall be or become insolvent, or admit in writing its inability to pay its debts as they mature, or make a general assignment for the benefit of creditors; or the Servicer or MCM Capital Group shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or consent of the Servicer or MCM Capital Group and shall not be discharged within sixty (60) days of appointment; or the Servicer or MCM Capital Group shall institute (by Buyer petition, application, answer , consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any .jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer or MCM Capital Group; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Servicer or MCM Capital Group and such shall remain unstayed or undismissed for sixty (60) days;
(e) A voluntary petition naming the Servicer or MCM Capital Group, as debtor, is filed under the United States Bankruptcy Code, or an involuntary petition naming the Servicer or MCM Capital Group, as debtor, is filed under the United States Bankruptcy Code and such involuntary petition shall remain undismissed for sixty (60) days;
(f) An Event of Default as specified in the Credit Agreement shall exist and shall not have been remedied to the written satisfaction of the Lender or waived in writing by the Lender;
(g) A material adverse change shall occur in the financial, business or operational condition of the Servicer or MCM Capital Group as compared to the status of the Servicer or MCM Capital Group as of the date of this Agreement, which material adverse change materially impacts the ability of the Servicer or MCM Capital Group to perform its obligations under any Loan Document to which it is a party;
(h) Any Reportable Event, which the Lender determines in good faith might constitute grounds for the termination of any Plan or for the appointment by the appropriate United States District Court of a trustee to administer any Plan, shall have occurred and be continuing thirty (30) days after written notice, to such effect shall have been given to the Servicer or MCM Capital Group by the tender; or any Plan shall have been terminated, or a trustee shall have been appointed by an appropriate United States District Court to administer any Plan, or the Pension Benefit Guaranty Corporation shall have instituted proceedings to terminate any Plan or to appoint a trustee to administer any Plan;
(i) The Servicer or MCM Capital Group shall liquidate, dissolve, terminate or suspend its business operations or otherwise tail to operate its business in the ordinary course;
(j) The Servicer or MCM Capital Group shall sell, lease, assign, transfer or otherwise dispose of all or a substantial part of its assets (whether in one transaction or in a series of transactions) which materially and adversely affects the Loan Collateral or the ability of the Servicer or MCM Capital Group to perform its obligations under the Loan Documents to which it is a party;
(k) The Servicer or MCM Capital Group shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax or tax deficiency which is being contested in good faith and by proper proceedings and for which it shall have set aside on its books adequate reserves therefor) or notice of any state or federal tax liens shall be tiled or issued (other than with respect to any taxes or tax deficiencies which are being contested in good faith and by proper proceedings and for which it shall have set aside on its books adequate reserves therefor);
(l) A continuing default in the payment of $100,000 or more under any note, agreement or other evidence of indebtedness or similar obligation of the Servicer (other than a default whose breach is elsewhere in this Section 6.1 specifically dealt with) or under any instrument under which such evidence of indebtedness or similar obligation has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified in such evidence of indebtedness or other instrument;
(m) A Change of Control shall occur;
(n) A Change of Key Management shall occur at a time when the aggregate outstanding principal balance of the Loans is $20,000,000 or more and one hundred eighty (180) days shall have passed after the occurrence of such Change of Key Management; Provided, however, if a Change of Key Management involves only either ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III or ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (and not both ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇), then such Change of Key Management shall not be an Event of Default if, within the above-described 180-day period, a new officer shall be employed to replace ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III or ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, as applicable, which new replacement officer is reasonably acceptable to the Lender;
(o) As of the last day of any two (2) consecutive Test Periods (excluding the two (2) Test Periods immediately following the Borrowing Date for the initial Loan made under this Agreement), the actual Asset Pool Proceeds received and distributed pursuant to Section 2.8 of the Credit Agreement as of the last day of such two (2) Test Periods for all Asset Pools (on a combined basis) is less than eighty-five percent (85%) of the Asset Pool Proceeds projected to be collected by the Borrower and distributed pursuant to Section 2.8 of the Credit Agreement for such Asset Pools ( on a combined basis) as of the last day of such two (2) Test Periods in the bid packages submitted by the Borrower as a part of the Accepted Borrowing Requests for such Asset Pools;
(p) The rendering against the Servicer or MCM Capital Group of a final judgment, decree or order for the payment of money in excess of $250,000 (unless the payment of such judgment in excess of $250,000 is fully waived) which materially and adversely affects the ability of the Servicer or MCM Capital Group to perform its obligations under the Loan Documents to which it is a party and such judgment, decree or order remains unsatisfied and unstayed for more than sixty (60) days; or
(q) Any of the following shall occur: (i) entry of a court order which enjoins, restrains or in any way prevents the Servicer or MCM Capital Group from conducting all or any material part of its business affairs in the representations and warranties ordinary course of TopCo, the Membersbusiness, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) withdrawal or suspension of any license required for the conduct of any material part of the covenants business of the CompanyServicer or MCM Capital Group, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, assets of the Servicer or any event MCM Capital Group having a fair market value of $500,000 or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, more in the case of clauses “(i)” and “(ii)” onlyaggregate are subject to an order or writ granting a motion or action to replevy, if an inaccuracy in any of the representations and warranties of the Companysequester, TopCogarnish, attach or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or levy against such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)assets.
Appears in 1 contract
Termination Events. This Agreement may be terminated at any time prior to the ClosingEffective Time, whether before or after receipt of the Requisite Purchaser Consent:
(a) by the mutual written consent of Buyer the Purchaser and the Company;
(b) by either Buyer the Company or the Company, Purchaser if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale any Governmental Authority of competent jurisdiction has denied approval of the Purchased Units by the End Date results from, Merger and such denial has become final and nonappealable or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, any court or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or the Company if a court Governmental Authority of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderorder, injunction or shall have taken any decree or other action, having the effect of legal restraint or prohibition permanently restraining, enjoining or otherwise prohibiting preventing the sale consummation of the Purchased Units Merger, unless the issuance of such order, injunction, decree or other legal restraint, as contemplated applicable, shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein; or ;
(iic) by Buyer either the Company or the Purchaser if a Governmental Authority provides notice the Merger shall not have been consummated on or before the date that it is seekingone hundred and eighty (180) days after the date of this Agreement (the “Termination Date”), or intends unless the failure of the Closing to seek, the imposition of an Antitrust Restraint as a condition occur by such date shall be principally due to the expiration failure of the party seeking to terminate this Agreement to perform or termination observe the obligations, covenants and agreements of any applicable waiting period under the HSR Act or other applicable Antitrust Lawsuch party set forth herein;
(d) by Buyer if: either the Company or the Purchaser (iprovided, that the terminating party is not then in material breach of any obligation, covenant or other agreement contained herein) if there shall have been a breach of any of the obligations, covenants or agreements or any of the representations and or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of TopCothe Purchaser or Merger Sub, in the Memberscase of a termination by the Company, or the Company contained Company, in this Agreement shall the case of a termination by the Purchaser, which breach or failure to be inaccurate as true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Agreement Closing Date, or shall have become inaccurate as the failure of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that7.2, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant termination by the Company, TopCoor Section 7.3, in the case of a termination by the Purchaser, and which is not cured within thirty (30) days (or any Member is curable such fewer days as remain prior to the Termination Date) following written notice to the Purchaser, in the case of a termination by the Company, TopCoor the Company, in the case of a termination by the Purchaser, or by its nature or timing cannot be cured during such Member through the use of reasonable efforts within ten period (10) Business Days after Buyer notifies the Company in writing of the existence of or such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) fewer days as a result of such inaccuracy or breach remain prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure PeriodTermination Date);; or
(e) by either the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement or the Purchaser if the Requisite Purchaser Consent shall be inaccurate as of the Agreement Date, or shall not have become inaccurate as of a date subsequent been delivered to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations Purchaser and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer by the Requisite Purchaser Consent Deadline in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this accordance with Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)6.9.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to If any of the Closingfollowing events (each a “Termination Event”) shall occur:
(a) Any SPV Entity, any Originator or any Servicer shall fail to make when due any payment or deposit required to be made by the mutual written consent of Buyer it under this Agreement or any other Transaction Document, and the Companysuch failure, shall continue unremedied for two (2) Business Days;
(b) any representation or warranty made or deemed made by either Buyer any SPV Entity, any Originator or the Company, if the Closing has not taken place on any Servicer (or before 5:00 p.m. (Eastern timeany of their respective officers) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate under or in connection with this Agreement or any other Transaction Document or any information or report delivered by any SPV Entity, any Originator or any Servicer pursuant to this Section 9.1(b) if the failure Agreement or any other Transaction Document, shall prove to consummate the sale of the Purchased Units by the End Date results from, have been incorrect or is caused by, a untrue in any material breach by Buyer of any of its representations, warranties, covenants respect when made or agreements contained hereindeemed made or delivered, and such incorrect or untrue 742583266 14453710 representation, warranty, information or report, solely to the extent capable of cure, shall continue unremedied for thirty (ii30) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereindays;
(c) (i) by Buyer any SPV Entity, any Originator or the Company if a court of competent jurisdiction any Servicer shall fail to perform or other Governmental Authority shall have issued a final and nonappealable Orderobserve any term, covenant or shall have taken agreement under this Agreement or any other actionTransaction Document (other than any such failure which would constitute a Termination Event under another clause set forth in this definition of “Termination Event”), having the effect of permanently restrainingand such failure, enjoining or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition solely to the expiration or termination extent capable of any applicable waiting period under the HSR Act or other applicable Antitrust Lawcure, shall continue unremedied for thirty (30) days;
(d) by Buyer if: this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Sold Assets or Pledged Collateral, free and clear of any Adverse Claim;
(e) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any SPV Entity, any Originator or any Servicer or their respective debts, or of a substantial part of their respective assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for any SPV Entity, any Originator or any Servicer or for a substantial part of their respective assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(f) any SPV Entity, any Originator or any Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in clause (e) of this Section 9.01, (iii) apply for or consent to the appointment of an administrator, monitor, receiver, interim receiver, receiver/manager, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors, or the board of managers (or similar governing body) of any SPV Entity, any Originator or any Servicer (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to above in this clause (f) or clause (e) of this Section 9.01;
(g) a Capital Coverage Deficit shall occur, and shall not have been cured within three (3) Business Days following any SPV Entity’s or any Servicer’s actual knowledge or receipt of notice thereof;
(h) any Seller, any Originator or any Servicer fails to make any payment (whether of principal or interest) in respect of any Material Indebtedness when and as the same shall become due and payable, after giving effect to any period of grace specified for such payment in the agreement or instrument governing such Material Indebtedness;
(i) any event or condition exists under any Material Indebtedness of the representations any SPV Entity, any Originator or any Servicer that causes such Material Indebtedness to become due prior to its scheduled maturity or any event or condition exists and warranties continues without waiver or remedy for a period of TopCo30 days that enables or permits (with or without the giving of notice, the Memberslapse of time or both) the holder or holders of any such Material 742583266 14453710 Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that no Termination Event shall arise under this clause (i) due to (i) any secured Material Indebtedness becoming due solely as a result of the voluntary sale or transfer of the assets securing such Material Indebtedness or (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof, in each case, so long as such Material Indebtedness is paid or otherwise satisfied as a result thereof within two Business Days of when due;
(j) any of the following shall occur:
(A) the average Default Ratios for any three consecutive Fiscal Months exceeds 6.00%;
(B) the average Delinquency Ratios for any three consecutive Fiscal Months exceeds 20.00%;
(C) the average Dilution Ratios for any three consecutive Fiscal Months exceeds 6.00%; or
(D) the Days’ Sales Outstanding exceeds 80 days;
(k) any SPV Entity shall be required to register as an “investment company” within the meaning of the Investment Company contained Act;
(l) any SPV Entity or any Servicer shall fail to deliver an Information Package pursuant to this Agreement, and such failure shall remain unremedied for three (3) Business Days;
(m) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect (except to the extent resulting from an act or omission of any Purchaser Party or any of their respective Affiliates), or any of the any SPV Entity, any Originator or any Servicer (or any of their respective Affiliates) shall so state in writing;
(n) a Change in Control shall occur;
(o) Any Servicer shall resign as Servicer other than in accordance with Section 8.01(c);
(p) Any SPV Entity (or, in the case of the Limited Partnership, the general partner thereof) shall fail at any time (other than for ten (10) Business Days following notice of the death or resignation of any Independent Manager) to have an Independent Manager who satisfies each requirement and qualification specified in this Agreement Agreement’s definition of “Independent Manager”;
(q) either (i) the Internal Revenue Service shall be inaccurate as file notice of a lien pursuant to Section 6323 of the Agreement DateCode with regard to any assets of any SPV Entity, any Originator or any Servicer, or (ii) the PBGC shall have become inaccurate as file notice of a date subsequent lien pursuant to Section 4068 of ERISA, Section 303(k) of ERISA, or 430(k) of the Agreement Date, such that Code with regard to any of the condition set forth in Section 7.1 would not be satisfiedassets of any SPV Entity or any of its ERISA Affiliates;
(r) (i) the occurrence of a Reportable Event; (ii) any the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to 742583266 14453710 Section 401(a)(29) of the covenants Code or Section 307 of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedERISA; or (iii) the existence with respect to any Material Adverse Effect shall have occurredMultiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to any Pension Plan; (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any SPV Entity or any of its ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any SPV Entity or any of its ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any SPV Entity or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to the Seller or any of its ERISA Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or other Effect shall have occurred condition with respect to a Pension Plan or circumstance a Multiemployer Plan, with respect to each of clause (i) through (ix), that either individually or other Effect shall exist that, in combination with any other events, circumstances or other Effectsthe aggregate, would reasonably be expected to have or result in a Material Adverse Effect;
(s) a Purchase and Sale Termination Event shall occur under any Purchase and Sale Agreement with respect to all applicable remaining Originators; providedor
(t) one or more judgments or decrees shall be entered against any SPV Entity, howeverany Originator, thator any Servicer, in the case or any Subsidiary of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of foregoing involving in the Company, TopCo, aggregate a liability (not paid or the Members as of a date subsequent to the Agreement Date extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or a breach shall not be vacated, discharged or stayed or bonded pending appeal for any period of a covenant by 30 consecutive days, and the Company, TopCo, aggregate amount of all such judgments equals or any Member is curable by the Company, TopCo, exceeds $50,000,000 (or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) solely with respect to any SPV Entity, $15,325); then, and in any such inaccuracy or breach if such inaccuracy or breach is cured prior event, the Administrative Agent may (or, at the direction of the Majority Group Agents shall) by notice to the expiration Seller (x) declare the Maturity Date to have occurred (in which case the Maturity Date shall be deemed to have occurred), and (y) declare the Aggregate Capital and all other non-contingent Seller Obligations to be immediately due and payable (in which case the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the Member Cure Period);
giving of notice) described in subsection (e) or (f) of this Section 9.01 with respect to the Seller, the Maturity Date shall occur and the Aggregate Capital and all other non-contingent Seller Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC, PPSA and under other Applicable Law, which rights and remedies shall be cumulative. Without limiting the foregoing, the Administrative Agent may obtain from any court of competent jurisdiction an order for the appointment of an interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or of any or all of its Pledged Collateral and, by instrument in writing appoint one or more interim receiver, a receiver, a manager or a receiver and manager of the Canadian Guarantor or any or all of its Pledged Collateral with such rights, powers and authority as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such interim receiver, receiver, manager or receiver and manager from time to time. To the extent permitted by Applicable Law, any such interim receiver, receiver, manager or receiver and manager appointed by the Company if: Administrative Agent shall (ifor purposes relating to responsibility for 742583266 14453710 acts or omissions) be considered to be the agent of the Canadian Guarantor and not of the Administrative Agent or any of Buyer’s representations the other Secured Parties. Any proceeds from liquidation of the Sold Assets and warranties contained in this Agreement Pledged Collateral shall be inaccurate as applied in the order of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition priority set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)3.01.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior The occurrence of any one or more of the following events shall constitute a “Termination Event” with respect to the ClosingOriginator:
(a) by The Originator shall fail to make any payment or deposit required hereunder on or within one (1) Business Day after the mutual written consent of Buyer and date on which the Company;same is required to be made.
(b) by either Buyer The Originator or the Company, if the Closing has not taken place on Performance Guarantor shall fail to perform or before 5:00 p.m. (Eastern timeobserve any covenant contained in Section 4.1(l) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member provision of any of its representations, warranties, covenants or agreements contained herein;Section 4.2.
(c) (i) by The Originator or Performance Guarantor shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 5.1) or any other Transaction Document to which it is a party and such failure shall continue for three (3) consecutive Business Days following the earlier to occur of (i) notice from Buyer (or the Company if a court Administrative Agent or any Purchaser, as its collateral assignee) of competent jurisdiction such non-performance or other Governmental Authority shall have issued a final and nonappealable Ordernon-observance, or shall have taken (ii) the date on which a Responsible Officer of the Originator (or Performance Guarantor, as the case may be) otherwise becomes aware of such non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by the Originator in this Agreement, any other actionTransaction Document or In any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect or misleading when made or deemed made in any material respect, having provided that the effect materiality threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(e) The Originator shall default, or the Performance Guarantor or any of permanently restrainingits Subsidiaries (other than the Originator) shall default, enjoining in the payment when due of any principal or otherwise prohibiting of or interest on any Material Indebtedness or shall fail to observe or perform any other agreement or condition relating to any such Material Indebtedness and such default has not been waived by the sale applicable lenders before the expiration of any applicable grace periods; or any other event or condition shall occur which results in a default under any such Material Indebtedness.
(f) (i) The Originator, Performance Guarantor or any of their respective Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the Purchased Units as contemplated hereinbenefit of creditors; or (ii) any proceeding shall be instituted by Buyer if a Governmental Authority provides notice that or against the Originator, Performance Guarantor or any of their respective Subsidiaries seeking to adjudicate it is seekingbankrupt or insolvent, or intends seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to seekbankruptcy, insolvency or reorganization or relief of debtors, and in the imposition of an Antitrust Restraint as a condition to the expiration or termination case of any applicable waiting such proceeding instituted against (but not instituted by) it, either such proceeding shall remain undismissed or unstayed for a period under the HSR Act of 30 days, or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCoactions sought in such proceeding (including, without limitation, the Members, entry of an order for relief or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as appointment of a date subsequent to the Agreement Datereceiver, such that the condition set forth in Section 7.1 would not be satisfied; (iitrustee or other similar official for it or any substantial part of its property) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; occur or (iii) any Material Adverse Effect shall have occurredthe Originator, Performance Guarantor or any event or other Effect of their respective Subsidiaries shall have occurred or circumstance or other Effect shall exist that, in combination with take any other events, circumstances or other Effects, would reasonably be expected corporate action to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in authorize any of the representations and warranties of actions set forth in the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: foregoing clauses (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any subsection (f).
(g) A Change of Buyer’s representations and warranties as of a date subsequent to the Agreement Date Control or a breach Credit Agreement Change of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) Control shall occur with respect to the Originator or Performance Guarantor.
(h) One or more final judgments for the payment of money in an amount in excess of $15,000,000, individually or in the aggregate, shall be entered against the Originator or Performance Guarantor on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a termination event (hereinafter, a "Termination Event") under this Forbearance:
(a) the failure of the Borrower to cause PFG's Obligations to be repaid as and when required by the mutual written consent of Buyer Loan Agreement, it being expressly acknowledged and the Companyagreed that TIME IS OF THE ESSENCE;
(b) the filing of a petition for relief by either Buyer or against Borrower under the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinUnited States Bankruptcy Code;
(c) (i) by Buyer or the Company if a court failure of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderthe Borrower to promptly, punctually, or shall have taken faithfully perform any other actionmaterial term, having the effect condition, or covenant of permanently restraining, enjoining this Forbearance or otherwise prohibiting the sale any of the Purchased Units other documents executed and delivered in connection with this Forbearance (the "Forbearance Documents") as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice and when due, it being expressly acknowledged and agreed that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust LawTIME IS OF THE ESSENCE;
(d) by Buyer if: the occurrence of any Default or Event of Default (iother than the Continuing Defaults and for the periods specified within said definition) under the Loan Agreement, any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, other Loan Document or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)Forbearance Document;
(e) any recital, representation or warranty made herein, in any Forbearance Document, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by or on behalf of Borrower in connection with this Forbearance or any Forbearance Document, shall prove to have been false, incomplete or misleading in any material respect on the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate date as of which it was made;
(f) the Agreement Date, failure of Borrower to make the Special Permitted Payments upon consummation of the Notified Financing or shall have become inaccurate as of a date subsequent to make the Agreement Date, such that payments in amounts materially higher from the condition dollar amounts set forth in Section 8.1 would not be satisfied; within the definition of Special Permitted Payments;
(g) the failure or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing abandonment of the existence Notified Financing; or
(h) a material impairment in the perfection or priority of PFG's security interest in the Collateral or in the value of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) Collateral taken as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)whole occurs.
Appears in 1 contract
Termination Events. This Agreement may The following events shall be terminated prior to the Closingtermination events (“Termination Events”) hereunder:
(a) default by the mutual written consent Borrower in the payment of Buyer any amount due and the Company;payable pursuant to Section 2.7(a)(iii), and such default shall continue for a period of five (5) days or more; or
(b) default by either Buyer or the Company, if Borrower in the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale payment of the Purchased Units by the End Date results from, principal of or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale installment of the Purchased Units by principal when it becomes due and payable on the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;Final Scheduled Payment Date; or
(c) the aggregate amount of Capital exceeds, for a period of two (i2) by Buyer Business Days or more, the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale product of the Purchased Units as contemplated hereinNet Advance Rate and the Collateral Amount; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) a Servicer Termination Event occurs and is continuing; or
(e) failure on the part of the Borrower or the Originator to make any payment or deposit required by Buyer if: the terms of any Transaction Documents; or 21894287.12
(f) failure on the part of the Borrower or the Originator in any material respect to observe or perform any of its covenants or agreements set forth in this Agreement or any other Transaction Document and such failure continues unremedied for more than 30 Business Days after written notice to the Borrower or the Originator (or 60 days if necessary to remedy such default); or
(g) any representation or warranty made or deemed to be made by the Borrower or the Originator under or in connection with any of the Transaction Documents or any information required to be given by the Borrower or the Originator to identify Loans or Contracts pursuant to any Transaction Document, shall prove to have been false or incorrect in any material respect when made, deemed made or delivered, and such failure continues unremedied for more than 30 days after the earlier of (x) the date on which the Borrower or Credit Acceptance discovers such breach or (y) the date on which the Borrower or Credit Acceptance receives written notice of such breach; or
(h) the occurrence of an Insolvency Event relating to the Originator, the Borrower or the Servicer; or
(i) any the Borrower shall become an “investment company” or require registration as an “investment company” within the meaning of the representations and warranties Investment Company Act of TopCo1940; or
(j) a regulatory, tax or accounting body has ordered that the Members, or the Company contained in this Agreement shall be inaccurate as activities of the Agreement Date, Borrower or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any Affiliate of the covenants of the Company, TopCo, Borrower contemplated hereby be terminated or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would may reasonably be expected to have cause the Borrower or result in any Affiliate to suffer materially adverse regulatory, accounting or tax consequences; or
(k) there shall exist any event or occurrence that has a reasonable possibility of causing a Material Adverse Effect; providedor
(l) the Borrower, howeverthe Servicer or Credit Acceptance shall enter into any merger, thatconsolidation or conveyance transaction, unless in the case of clauses “Credit Acceptance or the Servicer, the Servicer or Credit Acceptance, as applicable, is the surviving entity; or
(i)” m) the Collateral Agent ceases to have a valid and “(ii)” only, if an inaccuracy perfected first priority security interest in any a material portion of the representations Collateral and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts failure has not been remedied within ten (10) Business Days after Buyer notifies Days; provided that, the Company in writing portion of the existence of such inaccuracy or breach (Collateral in which the “Member Cure Period”), then Buyer may Collateral Agent does not terminate this Agreement under this Section 9.1(d) as have a result of such inaccuracy or breach prior to valid and perfected first priority security interest will be material if the expiration outstanding balance of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration related Contracts exceeds 3% of the Member Cure Period);Aggregate Outstanding Eligible Loan Balance of all Eligible Contracts; or
(e) by the Company if: (in) any Change-in-Control shall occur; or
(o) cumulative Collections are less than 65% of BuyerCredit Acceptance’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if cumulative Forecasted Collections for any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period).three consecutive Collection Periods. 21894287.12
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Termination Events. This Agreement may be terminated prior to the Closing12.1. If:
(a) by the mutual written consent Lessor fails to materially perform or materially breaches any of Buyer and its obligations under this Agreement, or under any undertaking or arrangement entered into in connection herewith and, in the Companycase only of a failure which in the opinion of the Lessee is capable of being remedied, such failure is not remedied to the Lessee's satisfaction within thirty (30) days after the Lessor became or should have been aware of the failure;
(b) any representation, warranty or statement which is made (or acknowledged to have been made) by either Buyer the Lessor in this Agreement or in any certificate, statement, or notice provided under or in connection with this Agreement proves to be incorrect and which reasonably threatens the Companyuse and enjoyment of the Equipment, or if repeated at any time with reference to the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall facts and circumstances subsisting at such time would not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained hereinaccurate in such respect ;
(c) (i) by Buyer or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Orderan encumbrancer takes possession of, or shall have taken a trustee or similar officer is appointed in respect of, all or any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale substantial part of the Purchased Units as contemplated herein; business or (ii) by Buyer if a Governmental Authority provides notice that it is seekingassets of the Lessor, or intends to seekdistress or any form of execution is levied or enforced upon or sued out against any substantial part of such assets and is not discharged within ten (10) days of being levied, enforced or sued out, or any Security Interest which may for the imposition time being affect any substantial part of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Lawits assets becomes enforceable;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member Lessor is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period)declared insolvent;
(e) by the Company if: Lessor convenes a meeting of its creditors or proposes to make any arrangement or composition with ("ARRANGEMENT"), or any assignment for the benefit of, its creditors or a petition is presented or a meeting is convened for the purpose of considering a resolution, or other steps are taken, for the winding-up of the Lessor, UNLESS :
(i) any the winding-up is for the purposes of Buyer’s representations and warranties contained followed by a reconstruction previously approved in this Agreement shall be inaccurate as of writing by the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or Lessor;
(ii) if the Arrangement results in the Lessor continuing as a going concern or the Lessee is of the opinion that the Arrangement will likely result in the Lessor continuing as a going concern;
(f) the ownership of the Equipment or any part of it by Lessor is contested in legal proceedings and final judgment which impugns, undermines or prevents the Lessor's ability to lease the Equipment to the Lessee in accordance with the terms of this Agreement, is obtained. then, the Lessee may at any time by notice in writing to the Lessor immediately treat such event as a repudiation by the Lessor of this Agreement and terminate the leasing of the Equipment under this Agreement.
12.2. The Lessee shall be in default if:
(a) it fails to pay the Rental or any part thereof on the Rental Payment Date; or
(b) it fails to materially perform or materially breaches any of Buyer’s covenants contained in its obligations under this Agreement shall have been breached such Agreement, whether express or implied which the Lessor determines is not capable of remedy; or
(c) it fails to materially perform or materially breaches any covenant or condition which the Lessor determines that it is capable of being remedied but not remedied by the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any Lessee within a period of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days days after notice from the Company notifies Buyer Lessor; or
(d) if it intimates to the Lessor, in writing before the expiry of the existence Lease Period that it no longer desires to continue with the leasing for whatever reason; or
(e) if it attempts to move, sell, transfer, encumber or sublease the Equipment or any part thereof without the written consent of such inaccuracy the Lessor; or
(f) it files or breach has filed against it a petition in bankruptcy or becomes insolvent or makes an assignment for the benefit of its creditors or pass a resolution for its winding-up (otherwise then by way of amalgamation or re-construction).
(a) Upon the “Buyer Cure Period”)occurrence of any one of the above events specified in Clause 12.2, then the Company may not Lessor shall be entitled to terminate this Agreement or this lease immediately without notice whereupon the Lessee shall deliver the Equipment to the Lessor within fourteen (14) days of receiving the Lessor's notice of termination in writing, failing which the Lessor shall be entitled to enter upon any land or building on or in which the Equipment is located or kept and take possession and remove the Equipment.
(b) The Lessee shall, upon the termination of this Agreement or this lease, pay to the Lessor all Rental Payments owing to the Lessor under this Section 9.1(eAgreement for the unexpired Lease Period. In addition, the Lessee shall be liable for all legal professional fees, other costs and expenses incurred or expended by the Lessor to recover from the Lessee any monies owed by the Lessee to the Lessor or to enforce or exercise any of the Lessor's remedies hereunder. Each remedy shall be cumulative and in addition to any other remedy otherwise available to the Lessor at law or in equity, and for the avoidance of doubt no express or implied waiver of any default of any provisions of this Agreement shall constitute a waiver of any of the Lessor's other rights.
(c) Forthwith upon taking possession of the Equipment pursuant to Clause 12.3(a), the Lessor shall take such steps as a result may be necessary to offer the Equipment for sale with the intention of realizing the maximum amount of proceeds from such sale as is practicable under the circumstances. The Lessee shall be entitled to participate in such sale which shall be completed within one month from the Lessor obtaining delivery or taking possession of the Equipment. The proceeds of the sale shall be applied in the following order of priority:
(i) firstly, towards bearing the costs of conducting such sale (including any tax or stamp duty arising therefrom);
(ii) secondly, towards the repayment to the Lessor of any amounts owed by the Lessee to the Lessor under this Agreement for the unexpired Lease Period; and
(iii) thirdly, the balance of the proceeds of such inaccuracy or breach prior sale (if any) shall be for the account of the Lessee.
(d) In the event that following the sale of the Equipment provided for under Clause 12.3(c), the Lessor shall not have realized the full amount of sums owned by the Lessee to the expiration of Lessor under this Agreement for the Buyer Cure unexpired Lease Period, provided Buyer, during the Buyer Cure Period, continues Lessee shall be liable to exercise reasonable efforts to cure pay the Lessor for such inaccuracy or breach (it being understood that amount as remains unpaid by the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior Lessee to the expiration of the Buyer Cure Period)Lessor.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) Originator shall fail to pay or remit any amount to be paid or remitted by the mutual written consent of Buyer it under any Transaction Document to which it is a party when due and the Company;such failure shall continue for more than two (2) Business Days.
(b) by either Buyer Originator shall fail to observe or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that perform (i) Buyer shall not be permitted to terminate this Agreement pursuant to this any covenant set forth in Section 9.1(b4.01(b)(i), (b)(iv), (g) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;
(c) (i) by Buyer or Section 4.02 or of any provision in any Transaction Document dealing with the Company if a court of competent jurisdiction use, disposition or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the sale remittance of the Purchased Units as contemplated herein; proceeds of Collections or instructions to Obligors of the Qualified Receivables or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, any other provision hereof or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would Transaction Document which is not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts remedied within ten (10) Business Days after the Company notifies earlier of (i) the date on which such failure shall first become known to any officer of Originator or (ii) written notice thereof is given to Originator by the Buyer (or any of its assigns).
(c) Any representation or warranty made by Originator herein or in writing any other Transaction Document or in any certificate or report furnished to the Buyer or any of its assigns pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the existence date of the issuance or making or deemed making thereof (unless, in the case of any breach of representation or warranty that results in a Purchase Price Credit hereunder, such inaccuracy breach has been cured in accordance with Section 1.03 hereof).
(d) Any of the following:
(A) The failure of the Originator to pay any Indebtedness when due or breach within any applicable grace period which Indebtedness individually or in the aggregate exceeds $1,000,000 (the “Buyer Cure PeriodMaterial Indebtedness”);
(B) The default by the Originator in the performance of any term, then provision or condition contained in any agreement (other than a Transaction Document) under which any Material Indebtedness was created or is governed, the Company may not terminate this Agreement under this Section 9.1(eeffect of which is to cause, or to permit the holder or holders of Material Indebtedness to cause Material Indebtedness to become due prior to its stated maturity; or any Material Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) as a result of such inaccuracy or breach prior to the expiration date of maturity thereof; or
(C) Any event of default (or similar event) under or in connection with the Credit Agreement.
(e) (i) Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Originator or any of its Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property and such proceeding or appointment continues undischarged or such proceeding or appointment continues undismissed or unstayed for a period of 60 days or (ii) Originator or any of its Subsidiaries shall take any corporate action to authorize or ratify any of the Buyer Cure Period, provided Buyer, during actions set forth in the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach foregoing clause (it being understood that the Company may not terminate i) of this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Periodsubsection (e).
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in an amount in excess of $5,000,000, individually or in the aggregate, shall be entered against the Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
Appears in 1 contract
Sources: Receivables Sale Agreement (Gehl Co)
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute a Termination Event:
(a) by Originator shall fail:
(i) to make any payment or deposit required hereunder when due and such failure shall continue for more than one (1) Business Day (it being understood that for purposes of this Section 5.1(a), the mutual written consent Purchase Price in respect of Buyer any Receivable shall not be deemed to be due until the Settlement Date immediately following the Transfer Date therefor);
(ii) to perform or observe any covenant set forth in Section 4.2 hereof; or
(iii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) or (ii) of this paragraph (a)) or any other Transaction Document to which it is a party and such failure shall continue for five (5) consecutive Business Days after the Company;earlier of the date upon which the Originator (1) obtains knowledge of such failure or (2) receives notice of such failure from the Buyer.
(b) Any representation, warranty, certification or statement made or deemed made by either Buyer Originator in this Agreement (excluding any representation, warranty, certification or statement made by Originator relating to the Companyeligibility or characteristics of any Receivable), if any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made (it being understood that the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer materiality threshold referenced above shall not be permitted applicable with respect to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer any clause of any of its representations, warranties, covenants representation or agreements contained herein, and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, warranty which itself contains a material breach by the Company, TopCo, or any Member of any of its representations, warranties, covenants or agreements contained herein;materiality qualification).
(c) Failure of Originator to pay any Indebtedness when due (iafter giving effect to any applicable grace period) by Buyer in an amount in excess of the Material Indebtedness Level or the Company if a court default by Originator in the performance of competent jurisdiction any term, provision or other Governmental Authority shall have issued a final and nonappealable Ordercondition contained in any agreement under which any such Indebtedness was created or is governed, or shall have taken any other actionin each case above, having the effect of permanently restrainingwhich is to cause, enjoining or otherwise prohibiting to permit the sale holder or holders of the Purchased Units as contemplated hereinsuch Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of Originator shall be declared to be due and payable or required to be prepaid (iiother than by a regularly scheduled payment or a voluntary prepayment) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition prior to the expiration or termination date of any applicable waiting period under the HSR Act or other applicable Antitrust Law;maturity thereof.
(d) by Buyer if: (i) Originator or any of its Subsidiaries shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the representations and warranties benefit of TopCo, the Memberscreditors; or any proceeding shall be instituted by or against Originator or any of its Subsidiaries seeking to adjudicate it bankrupt or insolvent, or the Company contained in this Agreement shall be inaccurate as seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of the Agreement Dateit or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or shall have become inaccurate as seeking the entry of an order for relief or the appointment of a date subsequent to the Agreement Datereceiver, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, trustee or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, other similar official for it or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effectsubstantial part of its property; provided, however, provided that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any proceeding instituted against Originator or any of the representations and warranties its Subsidiaries, such event shall not constitute a Termination Event until either (A) such proceeding shall have remained undismissed or unstayed for a period of the Companysixty (60) days, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10B) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, an order for relief shall have been entered against Originator or the applicable Member, during Subsidiary under the Member Cure Period, continues to exercise reasonable efforts to cure Federal bankruptcy laws or (C) Originator or such inaccuracy or breach Subsidiary (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(das applicable) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as taken corporate action consenting to, approving or acquiescing in the commencement or maintenance of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfiedproceeding; or (ii) if Originator or any of Buyer’s covenants contained in this Agreement its Subsidiaries shall have been breached such that take any corporate action to authorize any of the condition actions set forth in Section 8.2 would not be satisfied; provided, however, that if the foregoing clause (i) of this subsection (d).
(e) A Change of Control shall occur.
(f) One or more final judgments for the payment of money in an inaccuracy amount in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing excess of the existence Material Judgment Level shall be entered against Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for forty-five (45) consecutive days without a stay of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)execution.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The occurrence of any one or more of the Closingfollowing events shall constitute an “Termination Event”:
(a) by the mutual written consent Seller, the Servicer or the Performance Guarantor shall fail to remit or fail to cause to be remitted to the Agent, any Purchaser Agent or any Purchaser (i) on any day when due any payment, prepayment or deposit of Buyer and any amount to be remitted to reduce the Company;Invested Amount or any portion thereof or (ii) within two (2) Business Days of becoming due, CP Costs, Yield, fees set forth in any Fee Letter or any other Aggregate Unpaids required to be remitted to the Agent, any Purchaser Agent or any Purchaser; or
(b) by either Buyer the Seller or the Company, if Servicer shall fail to deliver any Settlement Report and such failure shall continue for three (3) Business Days after the Closing has not taken place on date when such Settlement Report became due; or before 5:00 p.m. the Servicer shall fail to perform its duties and obligations as Servicer under the terms of this Agreement or any other Transaction Document and such failure remains unremedied for a period of ten (Eastern time10) on March 9, 2021 (the “End Date”); provided, that days after either (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale any Responsible Officer of the Purchased Units by the End Date results from, Servicer becomes aware thereof or is caused by, a material breach by Buyer of any of its representations, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted written notice thereof to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units such Person by the End Date results fromAgent, or is caused by, a material breach by the Company, TopCo, any Purchaser Agent or any Member of any of its representations, warranties, covenants or agreements contained hereinPurchaser;
(c) (i) any representation, warranty, certification or statement made by Buyer the Seller, the Servicer or the Company if a court of competent jurisdiction Schein under this Agreement or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken any other actionTransaction Document or in any material agreement, having certificate, report, appendix, schedule or document furnished by the effect of permanently restrainingSeller, enjoining the Servicer or otherwise prohibiting Schein to the sale Agent, any Purchaser Agent or any Purchaser pursuant to or in connection with this Agreement or any other Transaction Document shall prove to have been false or misleading in any material respect as of the Purchased Units as contemplated hereintime made or deemed made (including by omission of material information necessary to make such representation, warranty, certification or statement not misleading); or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;or
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company contained a Change in this Agreement Control shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent occur with respect to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfiedPerformance Guarantor; (ii) any Schein shall cease to (A) own 100% of the covenants capital stock of the Company, TopCo, Seller or (B) own (directly or indirectly) 100% of the Members contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfiedcapital stock of each Originator (other than Schein); or (iii) Schein shall (A) consolidate or merge with or into any Material Adverse Effect shall have occurredother Person other than as permitted under Section 7.4 hereof or (B) sell, lease or otherwise transfer all or substantially all of its assets to any event or other Effect shall have occurred or circumstance or other Effect shall exist thatPerson unless Schein is the survivor of such transaction (unless, in combination with each of clauses (i) through (iii), consented to in writing in advance by Agent in its sole discretion); or
(e) except as otherwise provided in this Section 9.1, the Seller or Schein shall default or fail in the performance or observance of any other eventscovenant, circumstances agreement or other Effects, would reasonably be expected duty applicable to have it contained herein and such default or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within failure shall continue for ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);
(e) by the Company if: either (i) any Responsible Officer of Buyer’s representations the Seller or such Originator becomes aware thereof or (ii) written notice thereof to such Person by the Agent, any Purchaser Agent or any Purchaser; or
(i) the Seller shall fail to pay any Indebtedness when due and warranties contained such failure shall continue beyond the applicable grace period, if any, specified in this Agreement the agreement or instrument relating to such Indebtedness; (ii) Schein or any of its Consolidated Subsidiaries (other than the Seller) shall fail to pay any Indebtedness in excess of $75,000,000 of Schein or any of its Consolidated Subsidiaries, as the case may be, or any interest or premium on such Indebtedness, in either case, when due (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; (iii) any other default under any agreement or instrument relating to any such Indebtedness or any other event shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness unless (A) BTMU is a party to such other agreement or instrument and (B) BTMU and the other requisite lenders thereunder consent to a written waiver of such default or other event in accordance with the terms of such agreement or instrument; or (iv) a final court decision of $75,000,000 or more shall be inaccurate as rendered against Schein or any of its Consolidated Subsidiaries and (A) such amount remains unpaid and (B) such amount remains undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Schein or any of its Subsidiary to enforce any such judgment; or
(i) the average of the Agreement DateDelinquency Ratios, computed for each of the immediately preceding three months, shall exceed 14.50%; (ii) the average of the Default Ratios, computed for each of the immediately preceding three months, shall exceed 2.00%; (iii) the average of the Dilution Ratios, computed for each of the immediately preceding three months, shall exceed 6.25%; or (iv) the average of the Portfolio Turnover, computed for each of the immediately preceding three months shall exceed 45 days; or
(g) there shall be pending any litigation, investigation or proceeding, which the Seller is required to disclose pursuant to Section 7.1(i) hereof, which in the reasonable opinion of the Required Purchaser Agents is likely to materially adversely affect the financial position or results of operations of the Seller or Schein or materially impair the ability of the Seller or Schein to perform its respective obligations under the Transaction Documents; or
(h) there shall have occurred any event or change in the financial condition or operations of the Seller, the Servicer, the Performance Guarantor or Schein which could reasonably be expected to have a material adverse effect on (i) the ability of the Seller, the Servicer, the Performance Guarantor or Schein to perform its obligations under any Transaction Document, (ii) the legality, validity or enforceability of any Transaction Document, (iii) the Agent’s security interest in the Receivables generally or in any significant portion of such Receivables or the proceeds thereof, or (iv) the collectibility of the Receivables generally or of any material portion of such Receivables; or
(i) an Event of Bankruptcy shall occur with respect to the Seller, the Servicer, any Originator, the Performance Guarantor or any of Schein’s material subsidiaries thereof; or
(j) the Aggregate Invested Amount shall exceed the Purchase Limit and the Seller shall have become inaccurate as failed to pay to each Purchaser Agent for the benefit of a date subsequent the related Purchasers within three (3) days an amount to be applied to reduce the Agreement DateAggregate Invested Amount (ratably, according to each Purchaser’s aggregate Invested Amount), such that after giving effect to such payment the condition Aggregate Invested Amount is less than or equal to the Purchase Limit; or
(k) the Aggregate Investment amount exceeds the then applicable Purchase Limit or the Net Pool Balance shall at any time be less than an amount equal to the sum of (i) the Aggregate Invested Amount plus (ii) the Required Reserve; or
(l) Schein resigns as Servicer; or
(m) Schein shall default or fail in the performance or observance of any of the covenants set forth in Section 8.1 would not of the Credit Agreement as in effect on September 12, 2012 (without giving effect to any amendment, waiver, termination, supplement or other modification thereof unless consented to by the Agent); or
(n) a final court decision for $25,000 or more shall be satisfiedrendered against the Seller; or;
(o) the Performance Guarantor shall default or fail in the performance of any covenant or agreement set forth in the Performance Undertaking; or
(iip) if the “Termination Date” or any “Termination Event” under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or Schein shall for any reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of Buyer’s covenants contained in transferring Receivables to Seller under the Receivables Sale Agreement; or
(q) this Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of Seller, or any Seller Party shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability; or
(r) the Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability of its obligations thereunder; or
(s) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the Purchased Assets or any assets of the Seller, Performance Guarantor or any Originator and such lien shall not have been breached such that released within seven (7) days, or the condition set forth in PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in 4068 of ERISA with regard to any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten Purchased Assets; or
(10t) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) An ERISA Event shall occur with respect to such inaccuracy a Pension Plan or breach if such inaccuracy Multiemployer Plan which has resulted in, or breach is cured prior could be reasonably expected to have, a material adverse effect on the expiration business, financial condition, operations or properties of Schein and the ERISA Affiliates taken as a whole; or
(u) the Agent for the benefit of the Buyer Cure Period)Secured Parties shall cease to have a valid, perfected, first priority security interest in the Receivables, the Related Security, any Collection Account or any Lock-Box.
Appears in 1 contract
Termination Events. This Agreement may Each of the following events shall be terminated prior to the Closinga "Termination Event" hereunder:
(ai) Servicer (if Terra Capital) shall fail to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for five Business Days after notice of such failure by the mutual written consent of Buyer Administrative Agent or a Purchaser to Terra Capital or (ii) Servicer (if Terra Capital) or Seller shall fail to make any payment or deposit to be made by it hereunder and the Company;such failure shall continue for one Business Day; or
(b) Any representation or warranty made or deemed to be made by either Buyer any Terra Party (or the Company, if the Closing has not taken place on or before 5:00 p.m. (Eastern time) on March 9, 2021 (the “End Date”); provided, that (i) Buyer shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by Buyer of any of its representationsofficers) under or in connection with this Agreement, warranties, covenants or agreements contained herein, and (ii) the Company shall not be permitted to terminate this any other Agreement pursuant to this Section 9.1(b) if the failure to consummate the sale of the Purchased Units by the End Date results from, or is caused by, a material breach by the Company, TopCo, Document or any Member of Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any of its representations, warranties, covenants or agreements contained herein;material respect when made and shall remain material at the time in question; or
(c) (i) by Buyer Any Terra Party shall fail to perform or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and nonappealable Order, or shall have taken observe any other actionterm, having the effect of permanently restraining, enjoining covenant or otherwise prohibiting the sale of the Purchased Units as contemplated herein; or (ii) by Buyer if a Governmental Authority provides notice that it is seeking, or intends to seek, the imposition of an Antitrust Restraint as a condition to the expiration or termination of any applicable waiting period under the HSR Act or other applicable Antitrust Law;
(d) by Buyer if: (i) any of the representations and warranties of TopCo, the Members, or the Company agreement contained in this Agreement or any other Agreement Document on its part to be performed or observed and any such failure shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company, TopCo, or the Members contained in this Agreement remain unremedied for ten Business Days after written notice thereof shall have been breached given by the Administrative Agent to such Terra Party; or
(i) Any Terra Party shall fail to pay the principal of any Debt of such Person that is outstanding in an aggregate principal amount equal to at least $10,000,000, when due at final maturity and such failure shall continue after the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurredapplicable grace period, or any event or other Effect shall have occurred or circumstance or other Effect shall exist thatif any, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, specified in the case of clauses “(i)” and “agreement or instrument relating to such Debt; or
(ii)” only, if an inaccuracy in any of the representations and warranties of the Company, TopCo, or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company, TopCo, or any Member is curable by the Company, TopCo, or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Company in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 9.1(d) as a result of a default, breach or violation, any such inaccuracy Debt shall be declared to be due and payable, or breach becomes automatically due and payable, or is required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the expiration of the Member Cure Period, provided the Company, TopCo, or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Member Cure Period);stated maturity thereof; or
(e) by After any Settlement, Aggregate Required Allocations shall exceed the Company if: Required Allocations Limit; or
(f) An Event of Bankruptcy shall have occurred and remained continuing with respect to any Terra Party; or
(g) Any judgment or order for the payment of money in excess of $1,000,000 shall be rendered against Seller, or any judgment or order for the payment of money in excess of $10,000,000 shall be rendered against any other Terra Party and, in either case, shall not have been satisfied and either (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or enforcement proceedings shall have become inaccurate as of a date subsequent to the Agreement Date, been commenced by any creditor upon such that the condition set forth in Section 8.1 would not be satisfied; judgment or order or (ii) if there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) There shall have occurred any event which materially and adversely affects the collectibility of the Pool Receivables or the ability of Servicer to collect the Pool Receivables; or
(i) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any of Buyer’s covenants contained in this Agreement the Pool Assets and such lien shall not have been breached released within 10 Business Days of such that filing, or the condition set forth in Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in 4068 of ERISA with regard to any of Buyer’s representations the Pool Receivables, Related Security or Collections and warranties as such lien shall not have been released within 10 Business Days of such filing and in each case, the claim secured by such lien exceeds $5,000,000; or
(j) The occurrence of a date subsequent Change in Control; or
(k) The Sales Based Default Ratio exceeds 5.50%; or
(l) The average Dilution Ratio for any three consecutive months exceeds 12.0%; or
(m) The remaining term to the Agreement Date or a breach maturity of a covenant by Buyer any Initial Purchaser Note is curable by Buyer through the use of reasonable efforts within ten (10) Business Days after the Company notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Buyer Cure Period, provided Buyer, during the Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Buyer Cure Period)less than 150 days.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Terra Industries Inc)