Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount. (b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement. (c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement. (d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR. (e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto. (f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a). (g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192018-A B Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192018-A B notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192018-A B notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192018-A B Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A C Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A C notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A C notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A C Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount Counterparty and Dealer agree that, upon the effectiveness of any Forward Placement Notice or Amended Placement Notice, as applicable, in respect of the Transaction to which such Forward Placement Notice or Amended Placement Notice relates, each of the representations, warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction (including, without limitation, Dealer’s right to designate a Termination Settlement Date in respect of such Transaction pursuant to Section 10) shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction as if the Trade Date for such Transaction were such first Trading Day. Notwithstanding anything to the contrary in this Master Forward Confirmation, any Supplemental Confirmation, the Agreement, the Equity Definitions or the Swap Definitions, if Dealer designates a Termination Settlement Date with respect to a Transaction (1) following the occurrence of an Acceleration Event and such Termination Settlement Date is hereby specified to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to Counterparty’s execution of the Supplemental Confirmation relating to such Transaction, then, for purposes of such Termination Settlement Date, a Supplemental Confirmation relating to such Transaction reasonably completed by Dealer (as an additional amount if the Trade Date for such Transaction were the last day of the Forward Hedge Selling Period on which the Forward Seller sold Forward Hedge Shares for such Transaction) in accordance with the terms herein shall, notwithstanding the provisions under “Conditions to Effectiveness” above, be deemed to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountimmediately effective.
(b) Transferor shall not exercise its right [Reserved.]
(c) The parties hereto intend for:
(i) each Transaction to require reassignment to it or its designee be a “securities contract” as defined in Section 741(7) of the Receivables Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code;
(ii) the rights given to Dealer pursuant to Sections 10 and 11 of this Master Confirmation to constitute “contractual rights” to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any Removed Account cash, securities or other property provided as performance assurance, credit support or collateral with respect to any Transaction to constitute “Removed Accountmargin payments” (and “transfers” under a “securities contract” as defined in the Pooling Bankruptcy Code;
(iv) all payments for, under or in connection with any Transaction, all payments for Shares and Servicing Agreementthe transfer of Shares to constitute “settlement payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) pursuant any or all obligations that either party has with respect to Section 2.7(a) any Confirmation or the Agreement to constitute property held by or due from such party to margin, guaranty or settle obligations of the Transfer and Servicing other party with respect to the transactions under the Agreement (including each Transaction) or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementother agreement between such parties.
(d) So long Notwithstanding any other provision of the Agreement or any Confirmation, in no event will Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the Initial Number of Shares (as Regulation RR is in effect adjusted for stock splits and similar events) (the “Capped Number”). The Capped Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in (1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the Equity Definitions so long as, in the case of this sub-clause (2), such event is within Counterparty’s control, (y) Merger Events requiring corporate action of Counterparty (or any surviving entity of the Counterparty hereunder in connection with any such Merger Event) and (z) Announcement Events that are not outside Counterparty’s control. Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated on each day that any Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with transactions in the Shares (other than the Transactions) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Counterparty shall not have delivered the Number of Shares otherwise deliverable as a result of this Section 14(d) (the resulting deficit, the “Deficit Shares”), Counterparty shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, when, and to the extent that that, (A) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the sum Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect of (i) other transactions prior to such date which prior to the Seller’s Interest relevant date become no longer so reserved and (iiC) amounts on deposit Counterparty additionally authorizes any unissued Shares that are not reserved for other transactions (excluding such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall promptly notify Dealer of the occurrence of any investment earnings on depositof the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares to be delivered) and, as promptly as reasonably practicable, shall deliver such Shares thereafter. Counterparty shall not, until Counterparty’s Share delivery obligations under the Transactions have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance Event for the Excess Funding Account (to the extent the Excess Funding Account meets the requirements settlement or satisfaction of Rule 5(f) of Regulation RR) is less any transaction or obligation other than the Required Seller’s Interest as of the last day of Transactions or reserve any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding Shares for future issuance for any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater purpose other than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy Counterparty’s obligations to Dealer under the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRTransactions.
(e) For The parties intend for each Confirmation to constitute a “Contract” as described in the avoidance letter dated October 6, 2003 submitted on behalf of doubt▇▇▇▇▇▇▇, in no event shall either ▇▇▇▇▇ &Co. to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Indenture Trustee or staff of the Owner Trustee have Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter (the “Interpretive Letter”) dated October 9, 2003. Counterparty agrees to take all actions, and to omit to take any responsibility to monitor compliance with oractions, subject to their obligations under reasonably requested by Dealer in good faith based on the advice of counsel for the Transaction Documents, enforce compliance with, or be charged to comply with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoInterpretive Letter.
(f) The Servicer will include parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement) to comply with the amount requirements of Rule 10b5-1(c)(1)(i)(A) under the Seller’s Interest as Exchange Act and for each Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to be interpreted to comply with the most recent RR Measurement Date (or, with respect to requirements of Rule 10b5-1(c) under the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)Exchange Act.
(g) Comenity Bank confirms, [Counterparty represents and warrants to that it has received, read and agrees with, understands Dealer’s “Risk Disclosure Statement Regarding OTC Derivatives Products” and irrevocably and unconditionally undertakes to acknowledges the Issuer and terms thereof as if it had signed the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules Risk Disclosure Statement Verification contained therein as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).date hereof.]3
Appears in 2 contracts
Sources: Equity Distribution Agreement (CareTrust REIT, Inc.), Equity Distribution Agreement (CareTrust REIT, Inc.)
Additional Provisions. Notwithstanding and to the exclusion of any other term of this Terms Agreement or any other agreements, arrangements, or understandings between a Foreign Underwriter (aas defined below) The Additional Minimum Transferor Amount is hereby specified and Mexico, each party hereto acknowledges and accepts that a BRRD Liability (as an additional amount defined below) arising under this Terms Agreement may be subject to the exercise of Bail-in Powers by the Relevant Regulatory Authority (both as defined below) and acknowledges, accepts, and agrees to be considered part bound by: (i) the effect of the Minimum Transferor Amount pursuant to clause (b) any exercise of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (Write-down and Conversion Powers as defined in the Pooling EU Bail-in Legislation Schedule in relation to the relevant Bail-in Legislation (both as defined below) (“Bail-in Powers”) by the resolution authority with the ability to exercise Bail-in Powers in relation to any Foreign Underwriter (the “Relevant Resolution Authority”) in relation to any liability in respect of which the relevant Write-down and Servicing Agreement) pursuant to Section 2.7(aConversion Powers in the applicable Bail-in Legislation may be exercised (a “BRRD Liability”) of the Transfer any Foreign Underwriter to Mexico under this Terms Agreement, that (without limitation) may include and Servicing Agreement or Section 2.9(a) result in any of the Pooling following, or some combination thereof: (a) the reduction of all, or a portion, of such BRRD Liability or outstanding amounts due thereon; (b) the conversion of all, or a portion, of such BRRD Liability into shares, other securities or other obligations of any Foreign Underwriter or another person (and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right the issue to or conferral on Mexico of such shares, securities or obligations), including by means of an amendment, modification or variation of the Transferor pursuant to Section 2.7(b) terms of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing this Terms Agreement.
; (c) Transferor shall not exercise its discount option pursuant to Section 2.10 the cancellation of the Pooling and Servicing Agreement such BRRD Liability; or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is the amendment or alteration of the amounts due in effect (x) relation to the extent that BRRD Liability of any interest, if applicable, thereon, the sum of (i) maturity or the Seller’s Interest dates on which any payments are due, including by suspending payment for a temporary period; and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (variation of the terms of this Terms Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the extent the Excess Funding Account meets the requirements exercise of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Bail-in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated Powers by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRRelevant Resolution Authority.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Terms Agreement (United Mexican States), Underwriting Agreement (United Mexican States)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to To the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that this Section 8.7(d) shall not be applicable if Regulation RR shall no longer be in effect; provided, further, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192017-A B Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192017-A B notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192017-A B notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192017-A B Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192018-A Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192018-A notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192018-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192018-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR RR, the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, covenants represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with reference to the EU Due Diligence Securitization Rules and Retention Rules the UK Securitization Rules, in each case as in effect on the Closing Date, on an ongoing basis, so long as any Series 20192024-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence Securitization Rules and Retention the UK Securitization Rules, will retain on an ongoing basis a material net economic interest that is in the transaction constituted by the issuance of the Series 2024-A Notes, in the form of a first loss tranche in accordance with option (d) of Article 6(3) of each of the EU Securitization Regulation and the UK Securitization Regulation in an amount equal to not less than 5% of the nominal value of the securitized exposures (such nominal value as measured at the date of origination (being, with respect to each such securitized exposure, the Series 2019-A notes, in date on which the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated RegulationIssuer acquires an interest therein)), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notesAmount, (ii) Comenity Bank will not (and will not permit the Depositor Transferor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position mitigation or other credit risk hedge hedging or to be sold ifsold, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposurestransferred or otherwise surrendered, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of Rules and the CRR Delegated Regulation)UK Securitization Rules, (iii) Comenity Bank will not change the retention option or method of calculation of its the material net economic interest referred to in the securitized exposures while the Series 2019-A Notes are outstanding(i), except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of Rules and the CRR Delegated Regulation)UK Securitization Rules, and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i), (ii) and (iiiii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a) and (v) Comenity Bank will promptly notify the Issuer and the Indenture Trustee if it fails to comply with its agreements described in (i), (ii) or (iii) in this paragraph.
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR RR, the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, covenants represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with reference to the EU Due Diligence Securitization Rules and Retention Rules the UK Securitization Rules, in each case as in effect on the Closing Date, on an ongoing basis, so long as any Series 20192024-A B Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence Securitization Rules and Retention the UK Securitization Rules, will retain on an ongoing basis a material net economic interest that is in the transaction constituted by the issuance of the Series 2024-B Notes, in the form of a first loss tranche in accordance with option (d) of Article 6(3) of each of the EU Securitization Regulation and the UK Securitization Regulation in an amount equal to not less than 5% of the nominal value of the securitized exposures (such nominal value as measured at the date of origination (being, with respect to each such securitized exposure, the Series 2019-A notes, in date on which the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated RegulationIssuer acquires an interest therein)), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notesAmount, (ii) Comenity Bank will not (and will not permit the Depositor Transferor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position mitigation or other credit risk hedge hedging or to be sold ifsold, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposurestransferred or otherwise surrendered, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of Rules and the CRR Delegated Regulation)UK Securitization Rules, (iii) Comenity Bank will not change the retention option or method of calculation of its the material net economic interest referred to in the securitized exposures while the Series 2019-A Notes are outstanding(i), except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of Rules and the CRR Delegated Regulation)UK Securitization Rules, and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i), (ii) and (iiiii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a) and (v) Comenity Bank will promptly notify the Issuer and the Indenture Trustee if it fails to comply with its agreements described in (i), (ii) or (iii) in this paragraph.
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Not later than 12:00 noon, New York time, on the Business Day preceding each Payment Date, the Borrower shall, pursuant to Section 3 set forth on Schedule F, remit or cause to be considered part remitted to the Collateral Agent for deposit in the Payment Account an amount of Cash sufficient to pay the Minimum Transferor Amount pursuant amounts described in the Priority of Payments required to clause (b) of the definition of Minimum Transferor Amountbe paid on such Payment Date.
(b) Transferor shall not exercise its right If on any Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to require reassignment to it or its designee make the full amount of the Receivables in any Removed Account or “Removed Account” (as defined in disbursements required by the Pooling and Servicing Agreement) statements furnished by the Borrower pursuant to Section 2.7(a) 5 on Schedule F, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth in the Priority of Payments, subject to Section 12 of the Transfer and Servicing Agreement or Section 2.9(a) of Agreement, to the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementextent funds are available therefor.
(c) Transferor Notwithstanding anything to the contrary contained herein, Interest Proceeds may be applied to the payment of Administrative Expenses of the Borrower on days other than Payment Dates; provided that (1) in any Due Period such payments shall not exercise its discount option exceed an amount equal on any Payment Date (when taken together with any Administrative Expenses paid during the period since the preceding Payment Date or, in the case of the First Payment Date, the Closing Date) to $325,000 per annum; (2) such payments do not exceed the amounts permitted to be paid on the related Payment Date pursuant to Section 2.10 clause (3) of the Pooling Interest Priority of Payments; and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement(3) sufficient Interest Proceeds have theretofore been received to cover such payments.
(d) So long as Regulation RR is in effect (x) Notwithstanding any other provision of this Agreement, including the other subsections of this Schedule G, the Borrower, at the option of the Equity Owner, shall have the right to direct the Collateral Agent to make a cash distribution from Interest Proceeds to the Equity Owner on any Business Day but only if, and only to the extent that that, after giving effect to such cash distribution the sum Borrower will be able to satisfy all payments requirements under the Priority of (i) Payments required of it on the Sellernext Payment Date as evidenced by an Officer’s Interest and (ii) amounts Certificate of the Borrower or the Investment Manager on deposit (excluding any investment earnings on deposit) in behalf of the Excess Funding Account (Borrower, provided to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer Collateral Agent and the Indenture Trustee, solely for Administrative Agent upon which the benefit of each Applicable Investor, in connection Collateral Agent and the Administrative Agent shall be entitled to fully rely with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)no liability therefor.
Appears in 2 contracts
Sources: Credit Agreement (FS Investment Corp II), Credit Agreement (FS Energy & Power Fund)
Additional Provisions. (a) If Tenant leases an Expansion Increment pursuant to this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ and Tenant shall promptly enter into an amendment of this Lease adding the Expansion Increment to the Premises on the terms set forth in this Paragraph 58. The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part provisions of Paragraph 7 of the Minimum Transferor Amount pursuant Lease shall apply in full to clause (b) each Expansion Increment, with Tenant’s Share calculated by dividing the rentable square footage of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee Expansion Increment by the rentable square footage of the Receivables Building. The Base Year for each Expansion Increment shall be the calendar year in any Removed Account or “Removed Account” which the Expansion Increment Commencement Date occurs and the Base Tax Year for each Expansion Increment shall be the fiscal tax year during which the Expansion Increment Commencement Date occurs. Subject to Paragraph 58.b. above, Tenant may only lease the Expansion Increments for the original Tenant’s initial exclusive use (as defined in which shall be for a period of not less than one (1) year from the Pooling and Servicing Agreement) pursuant to Section 2.7(a) subject Expansion Increment Commencement Date), although, after such initial occupancy of the Transfer and Servicing Agreement or Section 2.9(a) Expansion Increments, Tenant may subsequently sublease any portion of any Expansion Increment in accordance with the provisions of Paragraph 13 above Notwithstanding anything to the contrary in this Paragraph 58, if on the date of exercise of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of Expansion Option as to a particular Expansion Increment or the Transferor pursuant to Section 2.7(b) of date immediately preceding the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of Expansion Increment Commencement Date for such Expansion Increment (i) the Seller’s Interest and original Tenant named herein (and/or an Affiliate or Affiliates thereof to which this Lease has been assigned or portions of the Premises have been sublet in accordance with Paragraph 13.h. above) is not in occupancy of at least seventy percent (70%) of the entire Premises then leased hereunder, or such parties do not intend to occupy at least seventy percent (70%) of the entire Premises then leased hereunder, together with the subject Expansion Increment, or (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements there exists an uncured Event of Rule 5(f) of Regulation RR) Default or there is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if Lease by Tenant that subsequently matures into an Event of Default due to Tenant’s failure to cure the breach within the applicable notice and cure period, then, at Landlord’s option, Tenant shall have no right to lease the time of such failure, subject Expansion Increment and the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either exercise of the Indenture Trustee or the Owner Trustee have any responsibility Expansion Option as to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or that Expansion Increment shall be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretonull and void.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Office Lease (Twitter, Inc.), Office Lease (Twitter, Inc.)
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender's Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Revolving Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the Maximum Revolving Loan Available Amount. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving Loan Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender's Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed drawings under such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor expiration date of a Letter of Credit or the applicable Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender's Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 11:00 a.m. Houston time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer's gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the Maximum Revolving Loan Available Amount (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Revolving Loans. Agent will pay to each Revolving Loan Lender such Lender's Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it each Letter of Credit equal to the greater of (x) $500 or its designee (y) an amount equal to the Margin Percentage applicable from time to time with respect to LIBOR Borrowings multiplied by the daily average amount available for drawings under each Letter of Credit (and computed on the basis of the Receivables actual number of days elapsed in any Removed Account a year composed of 360 days), in each case for the period from and including the date of issuance of such Letter of Credit to and including the date of expiration or “Removed Account” (as defined termination thereof, such fee to be due and payable in advance on the Pooling and Servicing Agreement) pursuant to Section 2.7(a) date of the Transfer and Servicing Agreement or Section 2.9(a) issuance thereof. Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right product of such Lender's Revolving Loan Commitment Percentage times the Transferor pursuant to Section 2.7(b) amount of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementsuch fees.
(cvi) Transferor The issuance by the applicable Issuer of each Letter of Credit shall, in addition to the conditions precedent set forth in Section 5 hereof, be subject to the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to Agent, and (B) that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Credit as Agent shall have reasonably requested and are not exercise its discount option pursuant to Section 2.10 inconsistent with the terms of this Agreement. In the Pooling event of a conflict between the terms of this Agreement and Servicing Agreement or Section 2.8 the terms of any Application, the Transfer and Servicing Agreementterms hereof shall control.
(dvii) So long as Regulation RR is in effect (x) Issuer will send to the extent that the sum of (i) the Seller’s Interest Borrower and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day each Lender, immediately upon issuance of any Monthly Period (eachLetter of Credit issued by Issuer or any amendment thereto, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest a true and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time correct copy of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements Letter of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer Credit or hedge any assets used to satisfy risk retention obligations under Regulation RRamendment.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Loan Agreement (Carrols Corp), Loan Agreement (Carrols Corp)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192017-A C Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192017-A C notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192017-A C notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192017-A C Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR RR, the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR the EU Securitization Regulation, the UK Securitization Regulation or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules and the UK Due Diligence and Retention Rules, in each case as in effect on the Closing Date, on an ongoing basis, so long as any Series 20192023-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, and the UK Due Diligence and Retention Rules will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192023-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of each of the EU Securitization Regulation (as supplemented by Article 8 of and the CRR Delegated UK Securitization Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192023-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of Due Diligence and Retention Rules and the CRR Delegated Regulation)UK Due Diligence and Retention Rules, (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 20192023-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of Due Diligence and Retention Rules and the CRR Delegated Regulation)UK Due Diligence and Retention Rules, and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. 12.1 Grower agrees to communicate all applicable terms, conditions and restrictions on Seed whether under this Agreement, a Guide, an Update Notification or otherwise to all persons and entities possessing or taking an interest in Grower’s Seed and Grain therefrom.
12.2 Except as provided herein, notices to Grower or to Corteva shall be sent to the addresses specified in sections A, B or D above.
12.3 Grower agrees that should any information provided to ▇▇▇▇▇▇▇ herein change, Grower will promptly notify Corteva via section D above.
12.4 Nothing in the Agreement shall be construed as a grant or license from Corteva to the Grower for the use of any Corteva trademark. Grower is required to enter a separate trademark license from Corteva to use any Corteva trademarks(s) including, but not limited to, those marks associated with trait, seed, technology or products.
12.5 Grower’s rights under the Agreement may not be transferred or assigned to any other person, entity or third-party without the prior written consent of Corteva.
12.6 The Agreement (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount including documents and updates incorporated herein pursuant to clause (bArticle 3 hereof) constitutes the entire agreement between Grower and ▇▇▇▇▇▇▇ regarding the use of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling Purchased Seed, Enlist herbicide and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer Corteva Sourced Technology. All prior agreements and Servicing Agreement or Section 2.9(a) of the Pooling understandings between Grower and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, Corteva with respect to Purchased Seed, Enlist herbicide and Corteva Sourced Technology are hereby superseded.
12.7 If any provision in the first Agreement is determined to be void or unenforceable, the remaining provisions shall remain in full force and effect.
12.8 The failure of Corteva or any Third-Party Technology providers to exercise one or more of its rights under the Agreement on one or more occasions shall not be deemed a waiver to exercise such statement following right(s) on one or more subsequent occasions.
12.9 This TUA may be executed and delivered by electronic signature (including portable document format) by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ may rely on the Closing Date, receipt of such document so executed and delivered electronically as if the original had been received.
12.10 Any action against Corteva and its Seed Sellers for breach of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes terms of the EU Due Diligence and Retention RulesAgreement, will retain on an ongoing basis including any warranties arising from it, must be commenced within one year after the cause of action accrues or be barred after such time. Where applicable, all required prerequisites to maintaining a material net economic interest that is not less than 5% of legal action me be complied with prior to initiating the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)legal action.
Appears in 2 contracts
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192018-A C Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192018-A C notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192018-A C notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192018-A C Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. Notwithstanding anything to the contrary contained herein, Borrower hereby agrees as follows:
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Borrower shall cause Mortgage Borrower to: (i) pay all principal, interest and other sums required to be considered paid by Mortgage Borrower under and pursuant to the provisions of the Mortgage Loan Documents; (ii) perform and observe all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mortgage Lender to Mortgage Borrower or Guarantor of any default by Mortgage Borrower under the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor AmountMortgage Loan Documents.
(b) Transferor Borrower shall cause Mezzanine A Borrower to: (i) pay all principal, interest and other sums required to be paid by Mezzanine A Borrower under and pursuant to the provisions of the Mezzanine A Loan Documents; (ii) perform and observe all of the terms, covenants and conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mezzanine A Lender to Mezzanine A Borrower or Guarantor of any default by Mezzanine A Borrower under the Mezzanine A Loan Documents.
(c) Borrower agrees to notify Lender promptly upon the occurrence of any Mortgage Event of Default under the Mortgage Loan Documents. If any Mortgage Event of Default occurs under the Mortgage Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or any part of the Mortgage Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mortgage Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent Borrower or Mortgage Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not exercise its right impede, interfere with, hinder or delay, and shall not permit Mortgage Borrower to require reassignment impede, interfere with, hinder or delay, any effort or action on the part of Lender to it cure any Mortgage Event of Default under the Mortgage Loan, or its designee to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mortgage Event of Default under the Mortgage Loan. In the event that Lender makes any payment in respect of the Receivables Mortgage Loan, Lender shall be subrogated to all of the rights of Mortgage Lender under the Mortgage Loan Documents against the Properties (or any portion thereof) and Mortgage Borrower in addition to all other rights Lender may have under the Loan Documents or applicable law.
(d) Borrower agrees to notify Lender promptly upon the occurrence of any Removed Account default under the Mezzanine A Loan Documents. If any default occurs under the Mezzanine A Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or “Removed Account” any part of the Mezzanine A Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mezzanine A Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent Borrower or Mezzanine A Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not impede, interfere with, hinder or delay, and shall not permit Mezzanine A Borrower to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any Mezzanine A Event of Default under the Mezzanine A Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mezzanine A Event of Default under the Mezzanine A Loan. In the event that Lender makes any payment in respect of the Mezzanine A Loan, Lender shall be subrogated to all of the rights of Mezzanine A Lender under the Mezzanine Loan Documents against the Collateral (as defined in the Pooling and Servicing Mezzanine A Loan Agreement) pursuant (or any portion thereof) and Mezzanine A Borrower in addition to Section 2.7(a) of all other rights Lender may have under the Transfer and Servicing Agreement Loan Documents or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRapplicable law.
(e) For Borrower hereby grants to Lender and its designees the avoidance right to enter upon the Properties (or any portion thereof) (subject to Legal Requirements and the rights of doubtTenants and subtenants) at any time following the occurrence and during the continuance of any Mortgage Event of Default under the Mortgage Loan Documents, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest in the Collateral. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of this Section (including communicating with Mortgage Lender with respect to any Mortgage Loan defaults), without consent from Borrower or Mortgage Borrower, but with prior reasonable notice. Lender shall have no event obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, shall either constitute a portion of the Indenture Trustee or Debt, shall be secured by the Owner Trustee have any responsibility Pledge Agreement and shall be due and payable to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoLender within five (5) Business Days following demand therefor.
(f) The Servicer will include Borrower hereby grants to Lender and its designees the amount right to enter upon the Properties (or any portion thereof) (subject to Legal Requirements and the rights of Tenants and subtenants) at any time following the Selleroccurrence and during the continuance of any Mezzanine A Event of Default under the Mezzanine A Loan Documents, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s Interest interest in the Collateral. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of the most recent RR Measurement Date this Section (or, including communicating with Mezzanine A Lender with respect to any Mezzanine A Loan defaults), without consent from Borrower or Mezzanine A Borrower, but with prior reasonable notice. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the first costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such statement following payments to the Closing Datedate of payment to Lender, as shall constitute a portion of the Closing DateDebt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within five (5) on each statement delivered pursuant to Section 5.3(a)Business Days following demand therefor.
(g) Comenity Bank confirmsIf Lender shall receive a copy of any notice of default under the Mortgage Loan Documents sent by Mortgage Lender, represents and warrants such notice shall constitute full protection to and agrees with, and irrevocably and unconditionally undertakes Lender for any action taken or omitted to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investorbe taken by Lender, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notesgood faith, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposuresreliance thereon, except to the extent permitted such action or omission is deemed to be fraudulent, gross negligence, illegal, or willful misconduct. If Lender shall receive a copy of any notice of default under the Mezzanine A Loan Documents sent by Mezzanine A Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon, except to the extent such action or omission is deemed to be fraudulent, gross negligence, illegal or willful misconduct. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender's exercise of its rights and remedies provided in this Section, except for Lender’s gross negligence, fraud, illegal acts or willful misconduct.
(h) Lender shall have the right at any time to acquire all or any portion of the Mortgage Loan or any interest in any holder of, or participant in, the Mortgage Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mortgage Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mortgage Loan is in default in accordance with Article 6(1) the terms of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) Mortgage Loan Agreement and (ii) above to accelerate the Mortgage Loan indebtedness, in or concurrently accordance with the delivery terms of each statement delivered pursuant the Mortgage Loan Agreement and (iii) to Section 5.3(apursue all remedies against any obligor under the Mortgage Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mortgage Borrower or any other Person may have against Mortgage Lender relating to or arising out of the Mortgage Loan shall be the personal obligation of Mortgage Lender, and in no event shall Mortgage Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mortgage Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mortgage Loan, provided that Mortgage Borrower may seek specific performance of its contractual rights under the Mortgage Loan Documents.
(i) Lender shall have the right at any time to acquire all or any portion of the Mezzanine A Loan or any interest in any holder of, or participant in, the Mezzanine A Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mezzanine A Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mezzanine A Loan is in default in accordance with the terms of the Mezzanine A Loan Agreement and (ii) to accelerate the Mezzanine A Loan indebtedness, in accordance with the terms of the Mezzanine A Loan Agreement and (iii) to pursue all remedies against any obligor under the Mezzanine A Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mezzanine A Borrower or any other Person may have against Mezzanine A Lender relating to or arising out of the Mezzanine A Loan shall be the personal obligation of Mezzanine A Lender, and in no event shall Mezzanine A Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mezzanine A Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mezzanine A Loan, provided that Mezzanine A Borrower may seek specific performance of its contractual rights under the Mezzanine A Loan Documents.
(j) Lender shall have the right to routinely consult with and advise Borrower’s management regarding the significant business activities and business and financial developments of Borrower. Lender shall have the right to cause consultation meetings to occur on a regular basis (no less frequently than quarterly) with Lender having the right to call special meetings at any reasonable times and upon reasonable advance notice.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Additional Provisions. (a1) The Additional Minimum Transferor Amount is hereby specified as an additional amount Notwithstanding anything else set out in this Article 9, in the event that the Obligations are not repaid on the Extended Maturity Date and a Second Extension Request has not been made by the Borrower and accepted by the Agent, (a "Payment Default"), prior to be considered part the exercise of any remedy by the Minimum Transferor Amount Agent hereunder, the Borrower and the Agent shall, within thirty (30) days following such Payment Default, agree upon a course of action pursuant to clause which the Borrower will sell sufficient assets to pay the Obligations to the Lenders, provided that, if no such agreement is reached within the prescribed time, subject to Subsection (b) 2), the Lenders may exercise all of their rights in and to the definition of Minimum Transferor AmountSecurity hereunder.
(b2) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling The Agent and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer Lenders acknowledge and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of agree that: (i) any present or future right that the Seller’s Interest Agent and/or the Lenders may otherwise have, or have had, hereunder or pursuant to the Security to sell, assign, transfer or realize upon any interest in ZPR pursuant to this Agreement or the Security shall be limited to the sale of 49% of the shares thereof or interest therein unless additional sales are consented to in writing by the ZPR Senior Lenders; and (ii) amounts on deposit (excluding any investment earnings on deposit) right that they may otherwise have to sell any interest in ZSG arising under the Excess Funding Account (Security shall be limited to such percentage thereof which is consented to by the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less European Commission and, in any event, to no more than the Required Seller’s Interest as 12.5% of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest shares thereof unless additional sales are consented to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated writing by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRZSG Senior Lenders.
(e3) For Notwithstanding Subsection (2) hereof, the avoidance Borrower covenants and agrees that if, following an Event of doubtDefault, the Agent reasonably determines that it must complete sales of a greater portion of the Borrower's interests in ZPR and/or ZSG than provided for and allowed under Subsection (2) hereof (the "Permitted Sales") at the request of the Agent, the Borrower will co-operate with the Lenders and make reasonable commercial efforts to obtain the consent of the applicable Senior Lenders to sales of the Borrower's interests in ZPR and ZSG as applicable, in no event addition to the Permitted Sales, provided that the Borrower shall either of the Indenture Trustee not be obliged to incur any expense or the Owner Trustee have disburse any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated funds in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Loan Agreement (Mercer International Inc), Loan Agreement (Mercer International Inc)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A B Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A B notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A B notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A B Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 2 contracts
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust), Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. Notwithstanding anything to the contrary contained herein, Borrower hereby agrees as follows:
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Borrower shall cause Mortgage Borrower to: (i) pay all principal, interest and other sums required to be considered paid by Mortgage Borrower under and pursuant to the provisions of the Mortgage Loan Documents; (ii) perform and observe all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mortgage Lender to Mortgage Borrower or Guarantor of any default by Mortgage Borrower under the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor AmountMortgage Loan Documents.
(b) Transferor Borrower shall cause Mezzanine A Borrower to: (i) pay all principal, interest and other sums required to be paid by Mezzanine A Borrower under and pursuant to the provisions of the Mezzanine A Loan Documents; (ii) perform and observe all of the terms, covenants and conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mezzanine A Lender to Mezzanine A Borrower or Guarantor of any default by Mezzanine A Borrower under the Mezzanine A Loan Documents.
(c) Borrower shall cause Mezzanine B Borrower to: (i) pay all principal, interest and other sums required to be paid by Mezzanine B Borrower under and pursuant to the provisions of the Mezzanine B Loan Documents; (ii) perform and observe all of the terms, covenants and conditions of the Mezzanine B Loan Documents on the part of Mezzanine B Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mezzanine B Lender to Mezzanine B Borrower or Guarantor of any default by Mezzanine B Borrower under the Mezzanine B Loan Documents.
(d) Borrower agrees to notify Lender promptly upon the occurrence of any Mortgage Event of Default under the Mortgage Loan Documents. If any Mortgage Event of Default occurs under the Mortgage Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or any part of the Mortgage Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mortgage Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent Borrower or Mortgage Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not exercise its right impede, interfere with, hinder or delay, and shall not permit Mortgage Borrower to require reassignment impede, interfere with, hinder or delay, any effort or action on the part of Lender to it cure any Mortgage Event of Default under the Mortgage Loan, or its designee to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mortgage Event of Default under the Mortgage Loan. In the event that Lender makes any payment in respect of the Receivables Mortgage Loan, Lender shall be subrogated to all of the rights of Mortgage Lender under the Mortgage Loan Documents against the Properties (or any portion thereof) and Mortgage Borrower in addition to all other rights Lender may have under the Loan Documents or applicable law.
(e) Borrower agrees to notify Lender promptly upon the occurrence of any Removed Account default under the Mezzanine A Loan Documents. If any default occurs under the Mezzanine A Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or “Removed Account” any part of the Mezzanine A Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mezzanine A Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent Borrower or Mezzanine A Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not impede, interfere with, hinder or delay, and shall not permit Mezzanine A Borrower to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any Mezzanine A Event of Default under the Mezzanine A Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mezzanine A Event of Default under the Mezzanine A Loan. In the event that Lender makes any payment in respect of the Mezzanine A Loan, Lender shall be subrogated to all of the rights of Mezzanine A Lender under the Mezzanine Loan Documents against the Collateral (as defined in the Pooling and Servicing Mezzanine A Loan Agreement) pursuant (or any portion thereof) and Mezzanine A Borrower in addition to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) all other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee rights Lender may have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, Loan Documents or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoapplicable law.
(f) The Servicer will include Borrower agrees to notify Lender promptly upon the amount occurrence of any default under the Mezzanine B Loan Documents. If any default occurs under the Mezzanine B Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or any part of the Seller’s Interest Mezzanine B Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mezzanine B Borrower as may be appropriate, to cause all of the most recent RR Measurement Date terms, covenants and conditions of the Mezzanine B Loan Documents on the part of Mezzanine B Borrower to be performed or observed thereunder to be promptly performed or observed, and (orB) pay any other amounts and take any other action as Lender, with respect in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the first extent Borrower or Mezzanine B Borrower is diligently pursuing remedies to cure such statement default in Lender’s reasonable discretion. Borrower shall not impede, interfere with, hinder or delay, and shall not permit Mezzanine B Borrower to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any Mezzanine B Event of Default under the Mezzanine B Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mezzanine B Event of Default under the Closing Date, as Mezzanine B Loan. In the event that Lender makes any payment in respect of the Closing DateMezzanine B Loan, Lender shall be subrogated to all of the rights of Mezzanine B Lender under the Mezzanine Loan Documents against the Collateral (as defined in the Mezzanine B Loan Agreement) on each statement delivered pursuant (or any portion thereof) and Mezzanine B Borrower in addition to Section 5.3(a)all other rights Lender may have under the Loan Documents or applicable law.
(g) Comenity Bank confirmsBorrower hereby grants to Lender and its designees the right to enter upon the Properties (or any portion thereof) (subject to Legal Requirements and the rights of Tenants and subtenants) at any time following the occurrence and during the continuance of any Mortgage Event of Default under the Mortgage Loan Documents, represents for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest in the Collateral. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and warrants purposes of this Section (including communicating with Mortgage Lender with respect to any Mortgage Loan defaults), without consent from Borrower or Mortgage Borrower, but with prior reasonable notice. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and agrees withthe costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and irrevocably and unconditionally undertakes other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the Issuer date of payment to Lender, shall constitute a portion of the Debt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within five (5) Business Days following demand therefor.
(h) Borrower hereby grants to Lender and its designees the right to enter upon the Properties (or any portion thereof) (subject to Legal Requirements and the Indenture Trusteerights of Tenants and subtenants) at any time following the occurrence and during the continuance of any Mezzanine A Event of Default under the Mezzanine A Loan Documents, solely for the benefit purpose of each Applicable Investortaking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest in connection the Collateral. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of this Section (including communicating with Mezzanine A Lender with respect to any Mezzanine A Loan defaults), without consent from Borrower or Mezzanine A Borrower, but with prior reasonable notice. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the EU Due Diligence costs and Retention Rules as expenses incurred by Lender in effect on exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Closing DateDefault Rate, on an ongoing basisfor the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, so long as any Series 2019-A Notes remain Outstandingshall constitute a portion of the Debt, that shall be secured by the Pledge Agreement and shall be due and payable to Lender within five (5) Business Days following demand therefor.
(i) Comenity BankBorrower hereby grants to Lender and its designees the right to enter upon the Properties (or any portion thereof) (subject to Legal Requirements and the rights of Tenants and subtenants) at any time following the occurrence and during the continuance of any Mezzanine B Event of Default under the Mezzanine B Loan Documents, as “originator” for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest in the Collateral. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures this Section (including communicating with Mezzanine B Lender with respect to any Mezzanine B Loan defaults), without consent from Borrower or Mezzanine B Borrower, but with prior reasonable notice. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the Series 2019-A notescosts and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, shall constitute a portion of the Debt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within five (5) Business Days following demand therefor.
(j) If Lender shall receive a copy of any notice of default under the Mortgage Loan Documents sent by Mortgage Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in the form of a first loss tranche good faith, in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposuresreliance thereon, except to the extent permitted such action or omission is deemed to be fraudulent, gross negligence, illegal, or willful misconduct. If Lender shall receive a copy of any notice of default under the Mezzanine A Loan Documents sent by Mezzanine A Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon, except to the extent such action or omission is deemed to be fraudulent, gross negligence, illegal or willful misconduct. If Lender shall receive a copy of any notice of default under the Mezzanine B Loan Documents sent by Mezzanine B Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon, except to the extent such action or omission is deemed to be fraudulent, gross negligence, illegal or willful misconduct. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender's exercise of its rights and remedies provided in this Section, except for Lender’s gross negligence, fraud, illegal acts or willful misconduct.
(k) Lender shall have the right at any time to acquire all or any portion of the Mortgage Loan or any interest in any holder of, or participant in, the Mortgage Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mortgage Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mortgage Loan is in default in accordance with Article 6(1) the terms of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) Mortgage Loan Agreement and (ii) above to accelerate the Mortgage Loan indebtedness, in or concurrently accordance with the delivery terms of each statement delivered pursuant the Mortgage Loan Agreement and (iii) to Section 5.3(apursue all remedies against any obligor under the Mortgage Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mortgage Borrower or any other Person may have against Mortgage Lender relating to or arising out of the Mortgage Loan shall be the personal obligation of Mortgage Lender, and in no event shall Mortgage Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mortgage Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mortgage Loan, provided that Mortgage Borrower may seek specific performance of its contractual rights under the Mortgage Loan Documents.
(l) Lender shall have the right at any time to acquire all or any portion of the Mezzanine A Loan or any interest in any holder of, or participant in, the Mezzanine A Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mezzanine A Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mezzanine A Loan is in default in accordance with the terms of the Mezzanine A Loan Agreement and (ii) to accelerate the Mezzanine A Loan indebtedness, in accordance with the terms of the Mezzanine A Loan Agreement and (iii) to pursue all remedies against any obligor under the Mezzanine A Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mezzanine A Borrower or any other Person may have against Mezzanine A Lender relating to or arising out of the Mezzanine A Loan shall be the personal obligation of Mezzanine A Lender, and in no event shall Mezzanine A Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mezzanine A Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mezzanine A Loan, provided that Mezzanine A Borrower may seek specific performance of its contractual rights under the Mezzanine A Loan Documents.
(m) Lender shall have the right at any time to acquire all or any portion of the Mezzanine B Lo
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender’s Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the aggregate of the Commitments. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender’s Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed Reimbursement Obligations).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor Amount expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender’s Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 12:00 noon Houston, Texas time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer’s gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the aggregate of the Commitments (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Loans. Agent will pay to each Revolving Loan Lender such Lender’s Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it or its designee each Letter of Credit equal to the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) greater of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to $500 or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted the then current Margin Percentage for LIBOR Borrowings multiplied by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
face amount of such Letter of Credit (e) For and computed on the avoidance basis of doubtthe actual number of days elapsed in a year composed of 360 days), in no event shall either each case for the period from and including the date of issuance of such Letter of Credit to and including the Indenture Trustee date of expiration or termination thereof, such fee to be due and payable in advance. Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge product of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include such Lender’s Revolving Loan Commitment Percentage times the amount of the Seller’s Interest as such fees. In addition to and cumulative of the most recent RR Measurement Date above described fees, Borrower shall pay to Agent, for the account of the applicable Issuer, in advance on the date of the issuance of the applicable Letter of Credit, a fronting fee in an amount equal to 0.10% of the face amount of the applicable Letter of Credit (or, such fronting fee to be retained by the applicable Issuer for its own account). The Borrower shall also pay each Issuer’s standard fees with respect to the first such statement following the Closing Dateamendment, as renewal or extension of the Closing Date) on each statement delivered pursuant to Section 5.3(a)any Letter of Credit or processing of drawings thereunder.
(gvi) Comenity Bank confirmsThe issuance by the applicable Issuer of each Letter of Credit shall, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes in addition to the Issuer and the Indenture Trusteeconditions precedent set forth in Section 5 hereof, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)Agent, and (ivB) Comenity Bank will provide ongoing confirmation that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Comenity Bank’s continued compliance with its obligations described in (i) Credit as Agent shall have reasonably requested and (ii) above in or concurrently are not inconsistent with the delivery terms of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Application, the terms hereof shall control.
(vii) Issuer will send to the Borrower and each statement delivered pursuant to Section 5.3(a)Lender, immediately upon issuance of any Letter of Credit issued by Issuer or any amendment thereto, a true and correct copy of such Letter of Credit or amendment.
Appears in 1 contract
Additional Provisions. In addition to the other conditions precedent herein set forth, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Issuing Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lenders will not be required to make any Swingline Loan, unless the Issuing Bank or the applicable Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated by any combination satisfactory to the Issuing Bank or such Swingline Lender of the following:
(a) The Additional Minimum Transferor Amount the LC Exposure and the Swingline Exposure of such Defaulting Lender is hereby specified reallocated, as an additional amount to be considered part outstanding and future Letters of Credit and Swingline Loans, to the Minimum Transferor Amount pursuant to Non-Defaulting Lenders as provided in clause (bi) of the definition of Minimum Transferor Amount.Section 2.19(b);
(b) Transferor shall not exercise its right to require reassignment to it or its designee without limiting the provisions of Section 2.19(a), the Borrower Cash Collateralizes the obligations of the Receivables Borrower in any Removed Account respect of such Letter of Credit or “Removed Account” Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(acontingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Transfer Administrative Agent, the Issuing Bank and Servicing Agreement or Section 2.9(a) the applicable Swingline Lender in their sole discretion to protect them against the risk of the Pooling and Servicing Agreement more than once during any Monthly Periodnon-payment by such Defaulting Lender; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.and
(c) Transferor shall not exercise its discount option pursuant then in the case of a proposed issuance of a Letter of Credit or making of a Swingline Loan, by an instrument or instruments in form and substance satisfactory to Section 2.10 the Administrative Agent, and to the Issuing Bank and the applicable Swingline Lender, as the case may be, the Borrower agrees that the face amount of such requested Letter of Credit or the principal amount of such requested Swingline Loan will be reduced by an amount equal to the unreallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender would otherwise be liable, in which case the obligations of the Pooling and Servicing Agreement Non-Defaulting Lenders in respect of such Letter of Credit or Section 2.8 Swingline Loan will, subject to the first proviso below, be on a pro rata basis in accordance with the Commitments of the Transfer Non-Defaulting Lenders, and Servicing Agreement.
(dthe pro rata payment provisions of Section 2.17(c) So long as Regulation RR is in effect (x) will be deemed adjusted to the extent reflect this provision; provided that the sum of (i) the Sellersum of each Non-Defaulting Lender’s Interest total Revolving Credit Exposure, total Swingline Exposure and total LC Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender, and (ii) amounts on deposit (excluding neither any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any Monthly Period (each, an “RR Measurement Date”)claim the Borrower, the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failureAdministrative Agent, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RRIssuing Bank, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor Swingline Lenders or any other party whatsoever for any violation of Regulation RR Lender may have against such Defaulting Lender, or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first cause such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest Defaulting Lender to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019Non-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).Defaulting Lender. 93842062.2
Appears in 1 contract
Sources: Senior Secured Credit Agreement (SLR Investment Corp.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, the parties agree that an Additional Termination Event will occur as provided in no event shall either Part 1(h)(ii) of the Indenture Trustee Schedule upon redemption or purchase of the Owner Trustee have any responsibility Series 2012-1 Class 2A2 Notes pursuant to monitor compliance Condition 5.5 (Optional Redemption for Tax and other Reasons) of the terms and conditions of the Notes, notwithstanding that the Party A Interim Exchange Amount and Party B Interim Exchange Amount are also payable upon such redemption;
(ii) An amount calculated in accordance with orSection 6(e) of the Agreement following designation of an Early Termination Date as a result of such Additional Termination Event will be paid by one party to the other, subject provided that, for the purposes of such calculation the obligations of the parties in respect of this Transaction due after the Early Termination Date shall be deemed to their obligations under be limited to the Transaction Documents, enforce compliance with, or be charged with knowledge payment of Regulation RR or any rules or regulations promulgated the Party A and Party B Floating Amounts on the basis of the principal amount outstanding of the Series 2012- 1 Class 2A2 Notes before taking into account the redemption mentioned in connection therewith, nor shall it be liable sub-part (i) above and without regard to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or Series 2012-1 Class 2A2 Notes which have been issued pursuant to Condition 15 (Notes Issues) after the breach of any related term Effective Date of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.Transaction; and
(fiii) The Servicer will include To the extent that Party B makes only a partial payment of the Party B Final Exchange Amount (or fails to pay any Party B Final Exchange Amount) to Party A, Party A shall reduce the amount of the Seller’s Interest as of Party A Final Exchange Amount by the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees withsame percentage reduction, and irrevocably and unconditionally undertakes shall have no other obligation to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions Party B in respect of such payment or vice versa. For the Excess Collateral avoidance of doubt, the failure by Party A to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount relating under this Clause 2(iii) will not constitute an Event of Default under this Agreement and the failure by Party B to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount under this Clause 2(iii) as a result of there being insufficient monies available for such purpose according to the Series 2019-A notesrelevant Issuer Priority of Payments as set out in the Cash Management Agreement or in the Issuer Deed of Charge, (ii) Comenity Bank as the case may be, will not (and will not permit the Depositor or any constitute an Event of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted Default under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)this Agreement.
Appears in 1 contract
Sources: Master Agreement
Additional Provisions. (ai) The Additional Minimum Transferor Amount is hereby specified If the Company has satisfied more than one Trigger Event at the time the Note Majority elects to redeem the CVR, then the CVR Value shall be equal to the highest possible CVR Value at such time as an additional amount to be considered part of the Minimum Transferor Amount determined pursuant to clause (bSection 1(c) of the definition of Minimum Transferor Amountabove.
(bii) Transferor No later than ten days following the end of each calendar month until the occurrence of a Trigger Event or the Termination Date, the Company shall not exercise its right deliver to require reassignment to it or its designee each Payee a certificate of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) Chief Financial Officer of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long Company certifying as Regulation RR is in effect (x) to the extent that the sum of to: (i) the Seller’s Interest Company's consolidated revenues and EBITDA for the immediately preceding twelve month period, as determined in accordance with GAAP, along with the supporting materials used by the Company to prepare such calculations and (ii) amounts on deposit (excluding any investment earnings on deposit) in whether a Trigger Event has occurred because either the Excess Funding Account (to Revenue Target or the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) EBITDA Target has been achieved. For the avoidance of doubt, in no event shall the Payees be deemed to have waived their rights under this CVR if they receive notice of a Trigger Event from the Company but do not respond to such notice. If the Note Majority disagrees in good faith with either such calculation, the Company and the Payees shall submit such calculation, the supporting materials used by the Company to prepare such calculation, and a brief description of the Indenture Trustee or Payees' basis for disputing such calculation to the Owner Trustee have any responsibility Company's independent auditors for resolution, which resolution, absent manifest error, shall be final and binding on the Payees and the Company for purposes hereof. All fees and expenses related to monitor compliance with or, subject to their obligations under such resolution by the Transaction Documents, enforce compliance with, or Company's independent auditors shall be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or borne by the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoCompany.
(fiii) The Servicer will include the amount No Trigger Event that has been deemed or certified to have occurred pursuant to Section 1(c)(ii) or (iii) above shall be revoked, rescinded or otherwise affected by any subsequent restatement(s) of the Seller’s Interest Company's consolidated financial statements, even if the effect of such restatement(s), either individually or in the aggregate, would be that the Company had not in fact achieved the Revenue Target or EBITDA Target, as of the most recent RR Measurement Date (orcase may be, for the period(s) with respect to the first which such statement following the Closing Date, as of the Closing Daterestatement(s) on each statement delivered pursuant to Section 5.3(a)applied.
(giv) Comenity Bank confirms, represents and warrants The Company shall provide each Payee with prompt written notice of its entering into any agreement which is reasonably likely to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, result in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes a Sale of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Exchange Applications Inc)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified If one or more Acquiring Funds provides an Acquired Fund with the notice contemplated by either of Sections 3(b) or (c) hereof, or if an Acquired Fund has any basis for believing that: (1) a Contract will not be treated or qualified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (ba “variable contract” as defined under Section 817(d) of the definition Code; or (2) an Acquiring Fund has ceased or might in the future cease to comply with Section 817(h) of Minimum Transferor Amountthe Code and Treasury Regulations Section 1.817-5 or as a regulated investment company under Subchapter M of the Code and will not be able to comply within the grace period afforded by Treasury Regulations Section 1.817-5 or Section 851 of the Code (as applicable), then, in each case, the applicable Acquiring Funds will redeem the shares of the applicable Acquired Funds held by such Acquiring Fund(s) upon request of, and within the time period prescribed in such notice by, the Acquired Funds. If requested by the Acquired Funds under such circumstances, the Acquiring Funds will make other arrangements satisfactory to the Acquired Funds and their counsel.
(b) Transferor shall The Acquiring Funds and ___________________________, severally and not exercise its right jointly, agree to require reassignment hold harmless, indemnify and defend the Acquired Funds and MainStay VP Funds Trust, including any of their principals, trustees, officers, employees and agents (“Acquired Fund Agents”), against and from any and all losses, costs, expenses or liabilities incurred by or claims or actions (“Losses or Claims”) asserted against any Acquired Fund and/or MainStay VP Funds Trust, including any Acquired Fund Agents, to it the extent such Losses or its designee of the Receivables Claims arise in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreementconnection with Section 3(b), Section 3(c) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a3(d) hereof. The indemnification provided for in this paragraph shall include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Losses or Claims. This provision shall survive the termination of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant The parties hereby mutually agree to Section 2.10 terminate the Participation Agreement as of the Pooling date hereof and Servicing Agreement or Section 2.8 waive any provision of the Transfer and Servicing AgreementParticipation Agreement requiring advance notice of termination thereof.
(d) So long as Regulation RR is in effect (x) to This Agreement will be governed by the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as laws of the last day ______________________ without regard to its choice of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRlaw principles.
(e) For the avoidance of doubt, in In no event shall either of the Indenture Trustee or the Owner Trustee have and under no circumstances will any responsibility party to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it this Agreement be liable to any investor or person, including without limitation any other party whatsoever to this Agreement, for any violation of Regulation RR special, indirect or consequential loss or damages resulting from any rules act or regulations promulgated failure to act in connection therewith or any similar provisions in effect or accordance with the breach of any related term provision of this Indenture SupplementAgreement, any Transaction Document even if such party had been advised of the possibility of such loss or any other document made or delivered pursuant hereto or theretodamages.
(f) The Servicer will include the amount of the Seller’s Interest Other than as of the most recent RR Measurement Date (or, set forth in Section 6(b) hereof with respect to __________________________, in any action arising under this Agreement, each Acquiring Fund and each Acquired agrees to look solely to the first such statement following the Closing Dateparticular Acquired Funds or Acquiring Funds, as of applicable, involved in the Closing Date) on each statement delivered pursuant matter in controversy and not to Section 5.3(a)any other Fund.
(g) Comenity Bank confirmsThe parties are hereby put on notice that no director/trustee, represents and warrants to and agrees withofficer, employee, agent, employee or shareholder of the Funds shall have any personal liability under this Agreement, and irrevocably that this Agreement is binding only upon the assets and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes property of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)applicable Funds.
Appears in 1 contract
Sources: Fund of Funds Investment Agreement (Mainstay Vp Funds Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “"Removed Account” " (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to To the extent that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s 's Interest as of the last day of any Monthly Period (each, an “"RR Measurement Date”"), the Transferor shall cause the Seller’s 's Interest to be increased to an amount such that the sum of (i) the Seller’s 's Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s 's Interest on or before the following RR Measurement Date; provided, that this Section 8.7(d) shall not be applicable if Regulation RR shall no longer be in effect; provided, further, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s 's Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192017-A Notes remain Outstanding, that (i) Comenity Bank, as “"originator” " for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192017-A notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192017-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192017-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s 's continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Indenture Supplement (World Financial Network Credit Card Master Note Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Purchases, acquisitions, and sales of Eligible NII Securities will be deemed to be considered part of have occurred on the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account “contract” or “Removed Accounttrade” (date as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) opposed to the extent that “settlement” or “payment” date. The receipt or grant by gift, inheritance, or operation of law of Eligible NII Securities during the sum Class Period will not be deemed a purchase, acquisition, or sale for the calculation of Recognized Loss Amounts, unless (i) the Seller’s Interest and donor or decedent purchased or otherwise acquired the Eligible NII Securities during the Class Period; (ii) amounts no Claim Form was submitted by or on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as behalf of the last day of any Monthly Period (eachdonor, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either behalf of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance withdecedent, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, by anyone else with respect to the first Eligible NII Securities; and (iii) it is specifically so provided in the instrument of gift or assignment. The date of covering a “short sale” is deemed to be the date of purchase or acquisition of Eligible NII Securities. The date of a “short sale” is deemed to be the date of sale of Eligible NII Securities. In accordance with the Plan of Allocation, however, the Recognized Loss Amount on a “short sale” is zero. In the event that a claimant has an opening short position in Eligible NII Securities, the earliest Class Period purchases or acquisitions of that respective security will be matched against such statement following opening short position and will not be entitled to a recovery until that short position is fully covered. The Net Settlement Fund will be allocated among all Authorized Claimants whose prorated payment is $10.00 or greater. If the Closing Dateprorated payment to any Authorized Claimant calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to that Authorized Claimant. Payment according to this Plan of Allocation will be deemed conclusive against all Authorized Claimants. Recognized Claims will be calculated as defined in this Notice by the Claims Administrator and cannot be less than zero. Distributions to eligible Authorized Claimants will be made after all claims have been processed and after the Court has approved the Claims Administrator’s determinations and issued the Distribution Order. Following an initial distribution of the Closing DateNet Settlement Fund, if there is any balance remaining in the Net Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise) on each statement delivered pursuant to Section 5.3(a).
after at least six (g6) Comenity Bank confirmsmonths from the date of initial distribution of the Net Settlement Fund, represents Class Counsel will, if feasible and warrants to economical after payment of Notice and agrees withAdministration Expenses, Taxes, and irrevocably any outstanding attorneys’ fees and unconditionally undertakes expenses, redistribute such balance among Authorized Claimants who have cashed their checks in an equitable and economic fashion. Any balance that still remains in the Net Settlement Fund after re-distribution(s), which is not feasible or economical to reallocate, after payment of Notice and Administration Expenses, Taxes, and any outstanding attorneys’ fees and expenses, will be contributed to non-sectarian, not-for-profit charitable organization(s) serving the public interest, designated by Class Representatives and approved by the Court. Each claimant is deemed to have submitted to the Issuer and jurisdiction of the Indenture Trustee, solely United States District Court for the benefit Eastern District of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures Virginia with respect to the Series 2019-A noteshis, her, or its claim. TABLE 15 February 25, 2010 to February 23, 2011 $0.71 $0.00 $0.00 $0.00 July 28, 2011 to October 26, 2011 $4.52 $0.91 $12.78 $14.85 October 27, 2011 to February 22, 2012 $5.79 $1.22 $17.04 $19.80 April 26, 2012 to May 1, 20136 $0.01 $0.01 $0.01 $0.01 May 2, 2013 to July 31, 2013 $2.41 $178.00 $124.83 $109.99 August 1, 2013 to October 30, 2013 $1.76 $152.02 $103.27 $103.52 5 The prices listed in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (Table 1 and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes Table 2 for each ▇▇▇ ▇▇▇▇ are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)per $1,000 par value.
Appears in 1 contract
Sources: Settlement Agreement
Additional Provisions. (aThe language of these additional provisions has not been approved by the Colorado Real Estate Commission).
▇. ▇▇▇▇▇ agrees, at Closing, subject to the terms, conditions, and provisions of this Contract, to have the Note Holder, currently ▇.▇. ▇▇▇▇▇▇▇, execute and deliver to Seller a Covenant Not to ▇▇▇ ▇▇▇▇▇▇ (in the form attached hereto as Exhibit A) The Additional Minimum Transferor Amount on the existing Promissory Note and Deed of Trust dated May 31, 1991 ("Loan") valued at the outstanding balance of the "Loan" (which principal balance as of the date of this Contract is hereby specified as an additional amount agreed upon to be considered part $2,750,000.00) dated May 31, 1991, and recorded June 6, 1991 in Book 512 at Page 426 in the Clerk and Recorder's Office of the Minimum Transferor Amount pursuant County of ▇▇▇▇▇▇, State of Colorado, and to clause (b) supply to Seller an appropriate release from personal liability on the loan executed by Note Holder in the form attached hereto as Exhibit B.
B. The parties agree that this Contract and the Closing is expressly conditional upon the concurrent closing on the attached and incorporated Agreement for Purchase and Sale of Business Assets executed concurrent with this Contract between Seller and Stage Stop Gaming Hall, Inc. The Date of Closing under this Contract, Section 11, is subject to Seller's extension of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) same pursuant to Section 2.7(a) 6 of the Transfer Agreement for Purchase and Servicing Agreement or Sale of Business Assets.
C. Any notice required to be supplied to Buyer shall also be supplied to his attorney, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Esq., address and telephone number noted below. Any notice required to be supplied to the Seller shall also be supplied to its attorney,
D. This contract shall survive closing.
▇. ▇▇▇▇▇▇▇▇▇ signatures shall be accepted as originals for the purpose of acceptance and execution of this document. If this document is accepted by both Seller and ▇▇▇▇▇ in writing, this document shall become effective as the Contract.
F. THIS CONTRACT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
G. Section 2.9(a) 20 is amended by the addition of the Pooling and Servicing Agreement more than once during following: the Parties, Disputants, agree that any Monthly Period; it being understood that this Section 8.7(b) dispute between them, if not first resolved through mediation, shall not limit any right be submitted to binding arbitration. The arbitration shall be governed by Colorado law and, absent agreement of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor parties, shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche conducted in accordance with the text of option (d) of Article 6(3) Commercial Arbitration Rules of the EU Securitization Regulation (as supplemented by Article 8 American Arbitration Association, and be held in the greater Denver Metropolitan area.
▇. ▇▇▇▇▇▇ shall execute at closing the IRS Certificate of Non-Foreign Status.
I. To the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary)extent possible, the right Special Warranty Deed to receive distributions in respect Purchaser shall reflect any exceptions to title, solely by Recorded Documents of Record specifying the Excess Collateral Amount relating to the Series 2019-A notessame by Book and Page or Reception Number and date of recordation.
J. The Title Insurance Committment and Policy, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)8 of this Contract shall be obtained from CLEAR CREEK-▇▇▇▇▇▇ COUNTY ABSTRACT CO, and shall contain Extended ALTA endorsements, deleting the Standard pre-printed Exceptions, excluding however the "survey" exception and any other exception the title company will not delete without a current survey. ▇▇▇▇▇▇ agrees to assign to Buyer its rights in any and all surveys it has, and deliver to the same to Buyer at or before Closing.
K. This Contract is expressly conditional upon the issuance of a Limited Gaming License to Stage Stop Gaming Hall, Inc. on or before February 13, 1998, which shall be at Buyer's sole cost and responsibility. This Contract is also conditional upon Seller obtaining at or before Closing consent or amendment to any obligations of Seller held by third parties to convey the Property to Buyer free of all liens excepting the First Deed of Trust described above in subsection 21 A.
L. The parties agree that the Seller and Buyer may close by "mail" so long as all their respective documents are received by the Title Company no later than one (1) Business Day prior to closing. 22 RECOMMENDATION OF LEGAL COUNSEL. By signing this document, ▇▇▇▇▇ and Seller acknowledge that the Selling Company or the Listing Company has advised that this document has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this contract.
Appears in 1 contract
Sources: Commercial Contract to Buy and Sell Real Estate (Lady Luck Gaming Corp)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor The following Section 4.03(j) is hereby added to the Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that Distribution Date, shall not exercise its discount option pursuant to Section 2.10 be distributed on certain Classes of Certificates in the amounts and in the manner determined as specified under “Description of the Pooling and Servicing Agreement or Section 2.8 Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums” in the Transfer and Servicing AgreementProspectus Supplement.”
(d) So long as Regulation RR The following proviso is hereby added at the end of Section 5.04(c) of the Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in effect the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s).”
(1) During each Interest Accrual Period, this Class will bear interest at an annual rate equal to the product of (x) to a fraction, expressed as a percentage, the extent that numerator of which is the sum aggregate amount of interest distributable on the Group 1 MBS (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) as specified in the Excess Funding Account (to Prospectus Supplement) on the extent related Distribution Date, and the Excess Funding Account meets denominator of which is the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as notional principal balance of the last day of any Monthly Period (eachX1 Class immediately preceding that Distribution Date, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated multiplied by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
12 (e) For the avoidance of doubt, but in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(aless than 0%).
(g2) Comenity Bank confirmsThe Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class(es); provided, represents however, that if this Class has two or more Companion Classes and warrants their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (or later, as the case may be) Final Distribution Date.
(3) During each Interest Accrual Period, this Class will bear interest at an annual rate equal to and agrees withthe product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 2 MBS (as specified in the Prospectus Supplement) on the related Distribution Date, and irrevocably and unconditionally undertakes to the Issuer and denominator of which is the Indenture Trustee, solely for notional principal balance of the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing X2 Class immediately preceding that Distribution Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that multiplied by (iy) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not 12 (but in no event less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option 0%).
(d4) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Class Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to To the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that this Section 8.7(d) shall not be applicable if Regulation RR shall no longer be in effect; provided, further, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the Existing EU Due Diligence and Retention Rules as in effect on the Closing DateRules, on an ongoing basis, so long as any Series 20192017-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the Existing EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 20192017-A notes, in the form of a first loss tranche in accordance with the text of option (d) of each of Article 6(3405(1) of the EU Securitization Regulation (as supplemented by CRR, Article 8 51(1) of the CRR Delegated AIFM Regulation and Article 254(2) of the Solvency II Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 20192017-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1405(1) of the EU Securitization Regulation CRR (as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation, (iii) Comenity Bank will not change the retention option or method of calculation of manner in which it retains its net economic interest in the securitized exposures while the Series 20192017-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization CRR, the AIFM Regulation (as supplemented by Article 10 of and the CRR Delegated Regulation), Solvency II Regulation and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section subsection 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR RR, the EU Securitization Regulation, the UK Securitization Framework or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR the EU Securitization Regulation, the UK Securitization Framework or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section subsection 5.3(a).
(g) Comenity Bank confirms, covenants represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with reference to the EU Due Diligence Securitization Rules and Retention Rules the UK Securitization Rules, in each case as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A 202[_]-[_] Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence Securitization Rules and Retention the UK Securitization Rules, will retain on an ongoing basis a material net economic interest that is in the transaction constituted by the issuance of the Series 202[_]-[_] Notes, in the form of a first loss tranche in accordance with option (d) of Article 6(3) of each of the EU Securitization Regulation, paragraph (1)(d) of UK SECN 5.2.8R and paragraph (d) of Article 6(3) of Chapter 2 of the UK PRASR in an amount equal to not less than 5% of the nominal value of the securitized exposures (such nominal value as measured at the date of origination (being, with respect to each such securitized exposure, the Series 2019-A notes, in date on which the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated RegulationIssuer acquires an interest therein)), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notesAmount, (ii) Comenity Bank will not (and will not permit the Depositor Transferor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position mitigation or other credit risk hedge hedging or to be sold ifsold, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposurestransferred or otherwise surrendered, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of Rules and the CRR Delegated Regulation)UK Securitization Rules, (iii) Comenity Bank will not change the retention option or method of calculation of its the material net economic interest referred to in the securitized exposures while the Series 2019-A Notes are outstanding(i), except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of Rules and the CRR Delegated Regulation)UK Securitization Rules, and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i), (ii) and (iiiii) above in or concurrently with the delivery of each statement delivered pursuant to Section subsection 5.3(a) and (v) Comenity Bank will promptly notify the Issuer and the Indenture Trustee if it fails to comply with its agreements described in (i), (ii) or (iii) in this paragraph.
Appears in 1 contract
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 201920[ ]-A [ ] Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 201920[ ]-A [ ] notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 201920[ ]-A [ ] notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 201920[ ]-A [ ] Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Indenture Supplement (World Financial Network Credit Card Master Note Trust)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor The following Section 4.03(j) is hereby added to the Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that Distribution Date, shall not exercise its discount option pursuant to Section 2.10 be distributed on certain Classes of Certificates in the amounts and in the manner determined as specified under “Description of the Pooling and Servicing Agreement or Section 2.8 Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums” in the Transfer and Servicing AgreementProspectus Supplement.”
(d) So long as Regulation RR The following proviso is in effect (xhereby added at the end of Section 5.04(c) to of the extent Trust Agreement: “; provided, however, that the sum of (i) the Seller’s any Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Reserve Amounts held in the Excess Funding Certificate Account (to pending distribution shall not be so withdrawn by the extent Trustee. In the Excess Funding Account meets case of each Mortgage Loan for which interest is calculated on an actual/360 basis, the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s related Interest as of the last day of any Monthly Reserve Amounts received for each December Interest Accrual Period (each, an “RR Measurement Date”), the Transferor other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) held in the Excess Funding Certificate Account (to for distribution on the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s first March Distribution Date that follows such Interest on or before the following RR Measurement DateAccrual Period(s); provided, that failure to satisfy after the foregoing covenant shall not constitute a breach Class Balances of this Indenture Supplement if at the time of such failureGroup 1 Classes, the transaction contemplated Group 2 Class or the Group 3 Classes, as applicable, have been reduced to zero, any related Interest Reserve Amounts remaining in the Certificate Account shall be distributed to the related Holders in the immediately following calendar month.” LT1 A $118,254,807 1.700% (1) LT2 FA, SA 290,907,204 7.000% (1) LT3 X1 (2) (2) (1) LT4 APT 249,649,728 (3) (1) LT5 A1, X3 89,376,889 (4) (1) LT6 A2, X3 454,740,672 (4) (1) LT7 AB1, X3 12,187,758 (4) (1) LT8 AB2, X3 62,010,091 (4) (1) Class RL (5) (5)
(1) The Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class(es); provided, however, that if this Class has two or more Companion Classes and their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (or later, as the case may be) Final Distribution Date.
(2) During each Interest Accrual Period, Lower Tier Interest LT3 will bear interest at an annual rate equal to the product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 1 MBS (as specified in the Prospectus Supplement) on the related Distribution Date minus the aggregate amount of interest payable on Lower Tier Interests LT1 and LT2 on that Distribution Date, and the denominator of which is the notional principal balance of the X1 Class immediately preceding that Distribution Date, multiplied by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other 12 (but in no event less than as permitted by Regulation RR, 0%). Lower Tier Interest LT3 will be a notional Class and will have a notional principal balance equal at all times to the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRnotional principal balance of the related Companion Class.
(e3) For During each Interest Accrual Period, Lower Tier Interest LT4 will bear interest at an annual rate equal to the avoidance product of doubt(x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 2 MBS (as specified in no event shall either the Prospectus Supplement) on the related Distribution Date, and the denominator of which is the principal balance of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with orAPT Class immediately preceding that Distribution Date, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretomultiplied by (y) 12.
(f4) The Servicer During each Interest Accrual Period, Lower Tier Interests LT5, LT6, LT7 and LT8 each will include bear interest at an annual rate equal to the product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Seller’s Interest Group 3 MBS (as specified in the Prospectus Supplement) on the related Distribution Date, and the denominator of which is the notional principal balance of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing X3 Class immediately preceding that Distribution Date, as of the Closing Datemultiplied by (y) on each statement delivered pursuant to Section 5.3(a)12.
(g5) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part Payments of the Minimum Transferor Amount Interest Obligations pursuant to clause (bthis Interest/Principal Guaranty shall, pursuant to Section 506(a)(v) of the definition Indenture, be made with respect to the Senior Notes and the Subordinated Notes ratably, without preference or priority of Minimum Transferor Amountany kind, according to the amounts due and payable for the respective Interest Obligations. Notwithstanding the foregoing, if an Event of Default under the Indenture shall have occurred and be continuing, any moneys collected by the Collateral Trustee, any Series Trustee or any Holder pursuant to this Interest/Principal Guaranty shall be applied as provided in Section 506(a)(ii) of the Indenture.
(b) Transferor Upon the occurrence and during the continuance of an Event of Default under the Indenture, the Collateral Trustee and the Holders of the Subordinated Notes shall make demand for payment under the Principal Guaranty prior to making demand for payment under this Interest/Principal Guaranty, but only with respect to the payment of that portion of the Original Principal Amount of the Subordinated Notes then due and payable that does not exceed the Maximum Principal Guarantied Amount under the Principal Guaranty. If payment shall not exercise its be made under the Principal Guaranty on or prior to the close of business on the Business Day following the date of such demand, the Collateral Trustee and the Holders shall have the right to require reassignment to it or its designee exercise any and all of the Receivables remedies provided in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) Article Five of the Transfer and Servicing Agreement Indenture or Section 2.9(a) Article 19 of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement Deed, or Section 2.9(b) of the Pooling and Servicing Agreementotherwise.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 Upon the occurrence and during the continuance of the Pooling and Servicing Agreement or Section 2.8 an Event of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations Default under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first payment of Interest Obligations on the Notes, the Collateral Trustee and/or the Holders shall make demand for payment of all such statement following due and unpaid Interest Obligations under this Interest/Principal Guaranty prior to exercising the Closing Date, as remedies provided in Article Five of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of or Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).19
Appears in 1 contract
Sources: Interest/Principal Guaranty (Atlanta Marriott Marquis LTD Partnership)
Additional Provisions. Landlord and Subtenant further agree as follows:
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount In the event that the Lease terminates prior to be considered part the expiration of the Minimum Transferor Amount pursuant to clause (b) term thereof for any reason other than as a result of an event of default by Subtenant under the Sublease shall continue in full force and effect as a direct lease between Landlord and Subtenant upon all of the definition terms, covenants and conditions of Minimum Transferor Amountthe Sublease; provided, however, that the rental rate thereunder shall be increased to the same per square foot rental rate schedule as in the Lease between Landlord and Subtenant dated May 15, 1998 for the building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
(b) Transferor shall not exercise its right Notwithstanding anything to require reassignment to it or its designee the contrary herein, the release and waiver of subrogation in Section 12 of the Receivables in any Removed Account or “Removed Account” (Lease shall apply as defined in the Pooling between Landlord and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementSubtenant.
(c) Transferor Landlord shall not exercise its discount option pursuant any recapture right it may have under the Lease in the event Subtenant sublets the Premises or assigns the Sublease to Section 2.10 an entity controlling, controlled by or under common control with Subtenant, a successor entity related to Subtenant by merger or consolidation, or a purchaser of substantially all of Subtenant's assets or stock. Landlord acknowledges that Subtenant intends to sublease portions of the Pooling Premises and Servicing Agreement or Section 2.8 agrees not to exercise any recapture right that it may have with respect to such subletting portions of the Transfer premises in the first year of the Sublease term. Landlord The Sobrato Group, a California limited Partnership by /s/ ["ILLEGIBLE"] ------------------ its GP. ----------------- Tenant Raytheon TI Systems, Inc., a Delaware corporation by_____________________ its____________________ Subtenant Concentric Network Corporation, a Delaware corporation by /s/ ["ILLEGIBLE"] -------------------- its Corporate Secretary ------------------- covenants and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to conditions of the extent Sublease; provided, however, that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor rental rate thereunder shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) same per square foot rental rate schedule as in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; providedLease between Landlord and Subtenant dated May 15, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely 1998 for the benefit of each Applicable Investorbuilding located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date▇▇▇ ▇▇▇▇, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)▇▇▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Sublease (Concentric Network Corp)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, the parties agree that an Additional Termination Event will occur as provided in no event shall either Part 1(h)(ii) of the Indenture Trustee Schedule upon redemption or purchase of the Owner Trustee have any responsibility Series 2012-1 Class 2B1 Notes pursuant to monitor compliance Condition 5.5 (Optional Redemption for Tax and other Reasons) of the terms and conditions of the Notes, notwithstanding that the Party A Interim Exchange Amount and Party B Interim Exchange Amount are also payable upon such redemption;
(ii) An amount calculated in accordance with orSection 6(e) of the Agreement following designation of an Early Termination Date as a result of such Additional Termination Event will be paid by one party to the other, subject provided that, for the purposes of such calculation the obligations of the parties in respect of this Transaction due after the Early Termination Date shall be deemed to their obligations under be limited to the Transaction Documents, enforce compliance with, or be charged with knowledge payment of Regulation RR or any rules or regulations promulgated the Party A and Party B Floating Amounts on the basis of the principal amount outstanding of the Series 2012-1 Class 2B1 Notes before taking into account the redemption mentioned in connection therewith, nor shall it be liable sub-part (i) above and without regard to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or Series 2012-1 Class 2B1 Notes which have been issued pursuant to Condition 15 (Notes Issues) after the breach of any related term Effective Date of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.Transaction; and
(fiii) The Servicer will include To the extent that Party B makes only a partial payment of the Party B Final Exchange Amount (or fails to pay any Party B Final Exchange Amount) to Party A, Party A shall reduce the amount of the Seller’s Interest as of Party A Final Exchange Amount by the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees withsame percentage reduction, and irrevocably and unconditionally undertakes shall have no other obligation to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions Party B in respect of such payment or vice versa. For the Excess Collateral avoidance of doubt, the failure by Party A to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount relating under this Clause 2(iii) will not constitute an Event of Default under this Agreement and the failure by Party B to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount under this Clause 2(iii) as a result of there being insufficient monies available for such purpose according to the Series 2019-A notesrelevant Issuer Priority of Payments as set out in the Cash Management Agreement or in the Issuer Deed of Charge, (ii) Comenity Bank as the case may be, will not (and will not permit the Depositor or any constitute an Event of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted Default under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)this Agreement.
Appears in 1 contract
Sources: Isda Master Agreement
Additional Provisions. LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE EQUIPMENT DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN. LESSEE: LESSOR: FUTURELINK CORP. COMPAQ CAPITAL CORPORATION BY: R. K▇▇▇▇▇▇ BY: ---------------------------- ---------------------------- R. K▇▇▇▇▇▇, ▇▇O ---------------------------- ---------------------------- Name and Title Name and Title November 15, 1999 ---------------------------- ---------------------------- Date Date 9 [COMPAQ CAPITAL LOGO] EXHIBIT B TO MASTER AGREEMENT MASTER AGREEMENT NUMBER __________ APA NUMBER __________ ADVANCE PRICING AGREEMENT COMPAQ CAPITAL CORPORATION (a"Lessor") The Additional Minimum Transferor Amount and ____________________ ("Lessee") are parties to the Master Lease and Financing Agreement identified by the Master Agreement Number specified above (the "Master Agreement"). This Advance Pricing Agreement (which shall be identified by the APA Number specified above) is hereby being entered into by Lessor and Lessee for the purpose specified as an additional amount to be considered part in Section 2.B of the Minimum Transferor Amount Master Agreement and supersedes any Advancing Pricing Agreement previously entered into by Lessor and Lessee pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, thereto with respect to Leases and Financings commencing during the first such statement following the Closing Date, as Commitment Period specified in Section 1 below. The terms and conditions of the Closing Date) on each statement delivered pursuant Master Agreement are hereby incorporated by reference into this Advance Pricing Agreement. All capitalized terms used in this Advance Pricing Agreement without definition have the meanings ascribed to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, them in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Master Agreement.
Appears in 1 contract
Sources: Master Lease and Financing Agreement (Futurelink Corp)
Additional Provisions. Notwithstanding anything to the contrary in any Transaction Document, until the Series Termination Date:
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount the Indenture Trustee shall not agree to be considered part any extension of the Minimum Transferor Amount pursuant 60 day periods referred to clause (b) in Section 2.4 or 3.3 of the definition of Minimum Transferor Amount.Transfer and Servicing Agreement;
(b) if the percentage equivalent of a fraction (A) the numerator of which is the total Principal Receivables relating to any one Merchant as of the end of any related Monthly Period and (B) the denominator of which is the aggregate total Principal Receivables as of the end of such related Monthly Period exceeds 25%, the Transferor shall suspend the addition of the Automatic Additional Accounts relating to such Merchant program until such time as such percentage is less than or equal to 25%; provided, however, that the co-branded portfolio for Ulta Salon, Cosmetics & Fragrance, Inc. and any related Merchant shall not be subject to the foregoing limitation;
(c) without the consent of each Class A Noteholder (which consent shall not be unreasonably withheld or delayed), Transferor shall not exercise its right to require reassignment to it or its designee (i) engage in any transaction described in Section 4.2 of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling Transfer and Servicing Agreement, (ii) pursuant to designate additional or substitute Transferors or Credit Card Originators as permitted by Section 2.7(a) 2.9 or 2.10 of the Transfer and Servicing Agreement or Section 2.9(a(iii) increase the percentage of Principal Receivables referred to in the proviso to clause (f) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right definition of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement“Eligible Account”.
(d) So long as Regulation RR is in effect (x) to To the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit in the Excess Funding Account (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RRdeposit therein) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit in the Excess Funding Account (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RRdeposit therein) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that this subsection 9.8(d) shall not be applicable if Regulation RR shall no longer be in effect; and provided, further, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement the Agreement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, or enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it either be liable to any investor investor, Noteholder, Note Owner or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplementthe Agreement, any other Transaction Document Document, or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)subsection 3.4(b) of the Transfer and Servicing Agreement.
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes Notwithstanding anything to the Issuer and contrary set forth in this Indenture Supplement or in any other Transaction Document, if the Indenture TrusteeTrustee is acting as successor Servicer pursuant to Section 5.5 of the Transfer and Servicing Agreement, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules it shall have no duty as in effect on the Closing Date, on an ongoing basis, so long successor Servicer or as any Series 2019-A Notes remain Outstanding, that Indenture Trustee to (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis monitor or determine whether a material net economic interest that is not less than 5% of the nominal value of the securitized exposures substitute index should or could be selected with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notesany Receivable, (ii) Comenity Bank will not (and will not permit the Depositor or determine any of its Affiliates to) allow the retained interest to be subject substitute index with respect to any credit risk mitigationReceivable, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change exercise any right related to the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) foregoing on behalf of the EU Securitization Regulation (as supplemented by Article 10 of Trust, the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in Noteholders or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)any other Person.
Appears in 1 contract
Sources: Indenture Supplement (Bread Financial Holdings, Inc.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part At the request of the Minimum Transferor Amount pursuant Holder hereof, the Calculation Agent shall provide to clause (b) the Holder hereof the interest rate hereon then in effect and, if determined, the interest rate which shall become effective as of the definition next Interest Reset Date. If this Note is an Original Issue Discount Note and if an Event of Minimum Transferor Amount.
(b) Transferor Default with respect to this Note shall not exercise its right to require reassignment to it or its designee of have occurred and be continuing, the Receivables in any Removed Account or “Removed Account” Default Amount (as defined hereafter) of this Note may be declared due and payable in the Pooling manner and Servicing Agreement) pursuant with the effect provided herein. The "Default Amount" shall be equal to Section 2.7(a) the adjusted issue price as of the Transfer and Servicing Agreement or Section 2.9(a) first day of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this accrual period as determined under Final Treasury Regulation Section 8.7(b1.1275-1(b) shall not limit any right (or successor regulation) under the United States Internal Revenue Code of 1986, as amended, in which the date of acceleration occurs increased by the daily portion of the Transferor pursuant to original issue discount for each day in such accrual period ending on the date of acceleration, as determined under Final Treasury Regulation Section 2.7(b1.1272-1(b) (or successor regulation) under the United States Internal Revenue Code of 1986, as amended. Upon payment of (i) the Transfer principal, or premium, if any, so declared due and Servicing Agreement payable and (ii) interest on any overdue principal and overdue interest or Section 2.9(b) of the Pooling and Servicing Agreement.
premium, if any (c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) each case to the extent that the sum payment of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as such interest shall be legally enforceable), all of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention Bank's obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating payment of principal of, premium, if any, and interest on this Note shall terminate. In case any Note shall at any time become mutilated, destroyed, lost or stolen, and such Note or evidence of the loss, theft or destruction thereof satisfactory to the Series 2019-A notesBank and the Issuing and Paying Agent and such other documents or proof as may be required by the Bank and the Issuing and Paying Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a new Note, of like tenor and principal amount, having a serial number not contemporaneously outstanding, in exchange and substitution for the mutilated Note or in lieu of the Note destroyed, lost or stolen but, in the case of any destroyed, lost or stolen Note, only upon receipt of evidence satisfactory to the Bank and the Issuing and Paying Agent that such Note was destroyed, stolen or lost, and, if required, upon receipt of indemnity satisfactory to the Bank and the Issuing and Paying Agent. Upon the issuance of any substituted Note, the Bank and the Issuing and Paying Agent may require the payment of a sum sufficient to cover all expenses and reasonable charges connected with the preparation and delivery of a new Note. If any Note which has matured or has been redeemed or repaid or is about to mature or to be redeemed or repaid shall become mutilated, destroyed, lost or stolen, the Bank may, instead of issuing a substitute Note, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Note) upon compliance by the holder with the provisions of this paragraph. No recourse shall be had for the payment of principal of, premium, if any, or interest on this Note for any claim based hereon, or otherwise in respect hereof, against any shareholder, employee, agent, officer or director, as such, past, present or future, of the Bank or of any successor corporation, banking association or other legal entity (collectively, "corporation"), either directly or through the Bank or any corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. The occurrence of any of the following events shall constitute an "Event of Default" with respect to this Note: (i) default in the payment of any interest with respect to any of the Notes issued by the Bank when due, which continues for 30 calendar days; (ii) Comenity Bank will not (and will not permit default in the Depositor payment of any principal of, or premium, if any, on any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Notes issued by the Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), when due; (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest entry by a court having jurisdiction in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1premises of (a) a decree or order for relief in respect of the EU Securitization Regulation Bank in an involuntary case or proceeding under any applicable United States federal or state bankruptcy, insolvency, reorganization or other similar law or (as supplemented by Article 10 b) a decree or order appointing a conservator, receiver, liquidator, assignee, trustee, sequestrator or any other similar official of the CRR Delegated Regulation)Bank, or of substantially all of the property of the Bank, or ordering the winding up or liquidation of the affairs of the Bank, and (iv) Comenity Bank will provide ongoing confirmation the continuance of Comenity Bank’s continued compliance with its obligations described any such decree or order for relief or any such other decree or order unstayed and in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).effect for a period of
Appears in 1 contract
Sources: Note Agreement (Popular Inc)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The following clause is hereby added at the end of Section 4.01 of the Receivables in Trust Agreement: “(without regard to any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementprovision for a permitted variance)”.
(c) Transferor shall not exercise its discount option pursuant to The first sentence of Section 2.10 4.03(d) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.8 replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Transfer and Servicing AgreementCertificates during any calendar month will be equal to the Certificate Distribution Amount for such calendar month.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that the sum Distribution Date, shall be distributed on certain Classes of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certificates in the Excess Funding Account (to amounts and in the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest manner determined as specified under “Description of the last day Certificates – Distributions of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum – Allocation of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certain Prepayment Premiums” in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRProspectus Supplement.”
(e) For The following proviso is hereby added at the avoidance end of doubtSection 5.04(c) of the Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s).”
(1) During each Interest Accrual Period, this Class will bear interest at an annual rate equal to the product of (A) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the X Class immediately preceding that Distribution Date, multiplied by (B) 12 (but in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(aless than 0%).
(g2) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to The Final Distribution Date for this Class will be the Issuer and same as the Indenture Trustee, solely Final Distribution Date for the benefit of each Applicable Investorrelated Companion Class(es); provided, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstandinghowever, that if this Class has two or more Companion Classes and their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (i) Comenity Bankor later, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option case may be) Final Distribution Date.
(d3) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount Counterparty and Dealer agree that, upon the effectiveness of any Forward Placement Notice or Amended Placement Notice, as applicable, in respect of the Transaction to which such Forward Placement Notice or Amended Placement Notice relates, each of the representations, warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction (including, without limitation, Dealer’s right to designate a Termination Settlement Date in respect of such Transaction pursuant to Section 10) shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction as if the Trade Date for such Transaction were such first Trading Day. Notwithstanding anything to the contrary in this Master Forward Confirmation, any Supplemental Confirmation, the Agreement, the Equity Definitions or the Swap Definitions, if Dealer designates a Termination Settlement Date with respect to a Transaction (1) following the occurrence of an Acceleration Event and such Termination Settlement Date is hereby specified to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to Counterparty’s execution of the Supplemental Confirmation relating to such Transaction, then, for purposes of such Termination Settlement Date, a Supplemental Confirmation relating to such Transaction reasonably completed by Dealer (as an additional amount if the Trade Date for such Transaction were the last day of the Forward Hedge Selling Period on which the Forward Seller sold Forward Hedge Shares for such Transaction) in accordance with the terms herein shall, notwithstanding the provisions under “Conditions to Effectiveness” above, be deemed to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountimmediately effective.
(b) Transferor shall not exercise its right [Reserved.]
(c) The parties hereto intend for:
(i) each Transaction to require reassignment to it or its designee be a “securities contract” as defined in Section 741(7) of the Receivables Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code;
(ii) the rights given to Dealer pursuant to Sections 10 and 11 of this Master Confirmation to constitute “contractual rights” to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any Removed Account cash, securities or other property provided as performance assurance, credit support or collateral with respect to any Transaction to constitute “Removed Accountmargin payments” (and “transfers” under a “securities contract” as defined in the Pooling Bankruptcy Code;
(iv) all payments for, under or in connection with any Transaction, all payments for Shares and Servicing Agreementthe transfer of Shares to constitute “settlement payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) pursuant any or all obligations that either party has with respect to Section 2.7(a) any Confirmation or the Agreement to constitute property held by or due from such party to margin, guaranty or settle obligations of the Transfer and Servicing other party with respect to the transactions under the Agreement (including each Transaction) or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementother agreement between such parties.
(d) So long Notwithstanding any other provision of the Agreement or any Confirmation, in no event will Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the Initial Number of Shares (as Regulation RR is in effect adjusted for stock splits and similar events) (the “Capped Number”). The Capped Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in (1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the Equity Definitions so long as, in the case of this sub-clause (2), such event is within Counterparty’s control, (y) Merger Events requiring corporate action of Counterparty (or any surviving entity of the Counterparty hereunder in connection with any such Merger Event) and (z) Announcement Events that are not outside Counterparty’s control. Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated on each day that any Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with transactions in the Shares (other than the Transactions) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Counterparty shall not have delivered the Number of Shares otherwise deliverable as a result of this Section 13(d) (the resulting deficit, the “Deficit Shares”), Counterparty shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, when, and to the extent that that, (A) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the sum Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect of (i) other transactions prior to such date which prior to the Seller’s Interest relevant date become no longer so reserved and (iiC) amounts on deposit Counterparty additionally authorizes any unissued Shares that are not reserved for other transactions (excluding such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall promptly notify Dealer of the occurrence of any investment earnings on depositof the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares to be delivered) and, as promptly as reasonably practicable, shall deliver such Shares thereafter. Counterparty shall not, until Counterparty’s Share delivery obligations under the Transactions have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance Event for the Excess Funding Account (to the extent the Excess Funding Account meets the requirements settlement or satisfaction of Rule 5(f) of Regulation RR) is less any transaction or obligation other than the Required Seller’s Interest as of the last day of Transactions or reserve any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding Shares for future issuance for any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater purpose other than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy Counterparty’s obligations to Dealer under the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRTransactions.
(e) For The parties intend for each Confirmation to constitute a “Contract” as described in the avoidance letter dated October 6, 2003 submitted on behalf of doubt, in no event shall either ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Indenture Trustee or staff of the Owner Trustee have Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter (the “Interpretive Letter”) dated October 9, 2003. Counterparty agrees to take all actions, and to omit to take any responsibility to monitor compliance with oractions, subject to their obligations under reasonably requested by Dealer in good faith based on the advice of counsel for the Transaction Documents, enforce compliance with, or be charged to comply with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoInterpretive Letter.
(f) The Servicer will include the amount parties intend for each Transaction (taking into account purchases of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, Shares in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (iCash Settlement or Net Share Settlement) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance comply with the text requirements of option (dRule 10b5-1(c)(1)(i)(A) under the Exchange Act and for each Confirmation to constitute a binding contract or instruction satisfying the requirements of Article 6(310b5-1(c) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject interpreted to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently comply with the delivery requirements of each statement delivered pursuant to Section 5.3(a)Rule 10b5-1(c) under the Exchange Act.
Appears in 1 contract
Sources: Equity Distribution Agreement (Sonida Senior Living, Inc.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules and the UK Due Diligence and Retention Rules, in each case as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A 20[_]-[_] Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, and the UK Due Diligence and Retention Rules will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A 20[_]-[_] notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of each of the EU Securitization Regulation (as supplemented by Article 8 of and the CRR Delegated UK Securitization Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A 20[_]-[_] notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of Due Diligence and Retention Rules and the CRR Delegated Regulation)UK Due Diligence and Retention Rules, (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A 20[_]-[_] Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of Due Diligence and Retention Rules and the CRR Delegated Regulation)UK Due Diligence and Retention Rules, and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Indenture Supplement (World Financial Network Credit Card Master Trust)
Additional Provisions. (a) The Additional Minimum Transferor Amount U.S. dollar is hereby specified as an additional amount to be considered part the currency (i) in which the Advisor and the Custodian maintain the accounts of the Minimum Transferor Amount pursuant Fund, (ii) that is used to clause (b) report performance of the definition of Minimum Transferor AmountFund and the benchmark and (iii) into which all cash positions in the Fund are repatriated and against which any currency transactions to settle trades are executed (“Base Currency”). Currency transactions to settle portfolio trades in non-restricted currency markets against the Base Currency shall be performed by a broker selected by the Subadvisor. The Subadvisor shall implement standing instructions with the Custodian to settle portfolio trades in restricted currency markets and to execute currency transactions to repatriate income and dividends into, and process corporate actions to or from, the Base Currency.
(b) Transferor shall not exercise The Subadvisor further agrees that, in performing its right duties hereunder with respect solely to require reassignment to the Subadvised Assets, it or its designee will comply with the terms of the Receivables Service Level Agreement dated as of the same date as this Agreement, and any amendments thereto (the “SLA”) including but not limited to:
i. make available to the Board and the Advisor at reasonable times, and at least once annually in any Removed Account or “Removed Account” (as defined in connection with the Pooling and Servicing Agreement) Board’s consideration of the renewal of this agreement pursuant to Section 2.7(a15 of the 1940 Act, its portfolio managers, investment analysts and other appropriate personnel, in order to review the investment policies, performance and other matters relating to the management of the Fund;
ii. review draft prospectuses, reports to shareholders and other documents provided to the Subadvisor, provide comments on such drafts on a timely basis, and provide certifications or sub-certifications on a timely basis as to the accuracy of the information contained in such documents relating to the Subadvisor and the Subadvised Assets;
iii. subject to Section 10(a)(1) of the Transfer and Servicing Agreement this Agreement, take all reasonable steps to vote all proxies solicited by or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following issuers of any securities in which the Closing Date, as Subadvised Assets may be invested in accordance with the Subadvisor’s proxy voting policies and procedures and in a manner that complies with applicable law; maintain records of all proxies voted on behalf of the Closing Date) on each statement delivered pursuant Fund; and provide the information required to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes be set forth in Form N-PX under the 1940 Act to the Issuer and Fund, the Indenture Trustee, solely for the benefit Advisor or their designated agent in a manner that is sufficiently complete by July 31st of each Applicable Investor, in connection year to ensure the Fund’s compliance with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019its filing obligations under Rule 30b1-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes 4 of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, 1940 Act (which may be provided in the form of a first loss tranche data submission); provided, however, the Subadvisor is not responsible for making any filing of any class action, bankruptcy settlement or other litigation claims on behalf of the Fund;
iv. provide the Advisor, the Fund or the Board with such information and assurances (including certifications and sub-certifications) as the Advisor, the Fund or the Board may reasonably request from time to time in order to assist the Advisor, the Fund or the Board in complying with applicable laws, rules and regulations, including requirements in connection with the preparation and/or filing of the Fund’s Form N-CSRs and Form N-Qs and amendments to the Registration Statement;
v. provide reasonable assistance to the Advisor, custodian, administrator or co-administrator for the Fund in determining or confirming, consistent with the procedures and policies stated in the Fund’s valuation procedures and/or the Registration Statement, the value of any portfolio securities or other investments of the Fund for which the Advisor, custodian, administrator or co- administrator seeks assistance from the Subadvisor in accordance with the text SLA;
vi. provide the Fund and the Advisor with a copy of option (d) its Form ADV as most recently filed with the SEC and, promptly after filing any material amendment to its Form ADV with the SEC, furnish a copy of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating such amendments to the Series 2019-A notes, (ii) Comenity Bank will not (Fund and will not permit the Depositor Advisor; and
vii. any other requirements as set forth or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest described in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)SLA.
Appears in 1 contract
Sources: Investment Subadvisory Agreement (Cohen & Steers Real Assets Fund, Inc.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, the parties agree that an Additional Termination Event will occur as provided in no event shall either Part 1(h)(ii) of the Indenture Trustee Schedule upon redemption or purchase of the Owner Trustee have any responsibility Series 2012-1 Class 3A1 Notes pursuant to monitor compliance Condition 5.5 (Optional Redemption for Tax and other Reasons) of the terms and conditions of the Notes, notwithstanding that the Party A Interim Exchange Amount and Party B Interim Exchange Amount are also payable upon such redemption;
(ii) An amount calculated in accordance with orSection 6(e) of the Agreement following designation of an Early Termination Date as a result of such Additional Termination Event will be paid by one party to the other, subject provided that, for the purposes of such calculation the obligations of the parties in respect of this Transaction due after the Early Termination Date shall be deemed to their obligations under be limited to the Transaction Documents, enforce compliance with, or be charged with knowledge payment of Regulation RR or any rules or regulations promulgated the Party A and Party B Floating Amounts on the basis of the principal amount outstanding of the Series 2012-1 Class 3A1 Notes before taking into account the redemption mentioned in connection therewith, nor shall it be liable sub-part (i) above and without regard to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or Series 2012-1 Class 3A1 Notes which have been issued pursuant to Condition 15 (Notes Issues) after the breach of any related term Effective Date of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.Transaction; and
(fiii) The Servicer will include To the extent that Party B makes only a partial payment of the Party B Final Exchange Amount (or fails to pay any Party B Final Exchange Amount) to Party A, Party A shall reduce the amount of the Seller’s Interest as of Party A Final Exchange Amount by the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees withsame percentage reduction, and irrevocably and unconditionally undertakes shall have no other obligation to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions Party B in respect of such payment or vice versa. For the Excess Collateral avoidance of doubt, the failure by Party A to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount relating under this Clause 2(iii) will not constitute an Event of Default under this Agreement and the failure by Party B to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount under this Clause 2(iii) as a result of there being insufficient monies available for such purpose according to the Series 2019-A notesrelevant Issuer Priority of Payments as set out in the Cash Management Agreement or in the Issuer Deed of Charge, (ii) Comenity Bank as the case may be, will not (and will not permit the Depositor or any constitute an Event of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted Default under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)this Agreement.
Appears in 1 contract
Sources: Isda Master Agreement
Additional Provisions. (ai) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part Notwithstanding Section 9.7 of the Minimum Transferor Amount pursuant to clause (bEquity Definitions, everything in the first paragraph of Section 9.7(b) of the definition Equity Definitions after the words “Calculation Agent” in the third line through the remainder of Minimum Transferor Amount.
(b) Transferor such Section 9.7 shall not exercise its right to require reassignment to it or its designee be deleted and replaced with the following: “based on an amount representing the Calculation Agent’s determination of the Receivables fair value to Buyer of an option with terms that would preserve for Buyer the economic equivalent of any payment or delivery (assuming satisfaction of each applicable condition precedent) by the parties in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) respect of the Transfer and Servicing Agreement or Section 2.9(a) relevant Transaction that would have been required after that date but for the occurrence of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of Merger Event, Nationalization, as the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementcase may be.”
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (Notwithstanding anything to the extent contrary in this Confirmation, upon the Excess Funding Account meets the requirements occurrence of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as one of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (orevents, with respect to this Transaction, (1) JPMorgan shall have the first right to designate such statement following event an Additional Termination Event and designate and Early Termination Date pursuant to Section 6(b) of the Closing Agreement, and (2) Company shall be deemed the sole Affected Party and the Transaction shall be deemed the sole Affected Transaction:
(A) Company sells of all or substantially all of its assets in a transaction pursuant to which the Shares are converted into cash, securities or other property.
(B) There is a default by Company or any subsidiary in the payment of the principal or interest on any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced any indebtedness for money borrowed in excess of $25 million in the aggregate of Company and/or any subsidiary, whether such indebtedness now exists or shall hereafter be created resulting in such indebtedness becoming or being declared due and payable, and such acceleration shall not have been rescinded or annulled within 10 days after written notice of such acceleration has been received by Company or such subsidiary.
(C) At any time during the period from and including the Trade Date, to and including the Expiration Date, the Shares cease to be listed or quoted on the Exchange (a “Share De-listing”) for any reason (other than a Merger Event as a result of which the shares of common stock underlying the Warrants are listed or quoted on The New York Stock Exchange, The American Stock Exchange or the NASDAQ National Market (or their respective successors) (the “Successor Exchange”)) and are not immediately re-listed or quoted as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit date of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect such de-listing on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Successor Exchange.
Appears in 1 contract
Additional Provisions. (a) The In the event the Escrowed Documents are released from escrow to the Supporting Noteholders pursuant to this Escrow Agreement, the Additional Minimum Transferor Amount is hereby specified as an additional New Notes shall be distributed to the Eligible Holders, pro rata, based on the respective claim amount of the Existing Notes held by the Eligible Holders. In addition, the Additional New Notes Indenture and the Additional New Notes Pledge Agreement shall be deemed to be considered part effective upon such release and the Eligible Holders shall have the right to record and file the Additional New Notes Pledge Agreement (or financing statements or similar notices evidencing the security interests created hereby) in any appropriate recording or filing office and to advise the indenture trustee, the collateral agent(s) and any other third parties affected thereby of the Minimum Transferor Amount pursuant effectiveness thereof. The Company covenants and agrees to clause (b) execute and deliver all further documents and agreements and take all further action that may be reasonably necessary or desirable, or that the Supporting Noteholders may reasonably request, in order to enforce and effectively implement the terms and conditions of the definition of Minimum Transferor Amountthis Section 50.
(b) Transferor In the event the Restructuring is consummated and the Eligible Holders are entitled to receive the Escrowed Documents, then, in lieu of releasing the Escrowed Documents to the Eligible Holders, (i) the Escrowed Documents (other than the share certificates) shall not exercise its right to require reassignment to it or its designee be cancelled, (ii) the principal amount of the Receivables Additional New Notes shall be added to the principal amount of the New Notes to be issued by the Company in any Removed Account or “Removed Account” connection with the Restructuring (and shall be distributed to the holders of Existing Notes in accordance with the terms of the Restructuring), and (iii) the entire principal amount of the New Notes shall be governed by the New Notes Indenture and secured by the Collateral Documents (as such term is defined in the Pooling New Notes Indenture) executed and Servicing Agreement) delivered in connection with the consummation of the Restructuring. In such event, the Company shall cause the assets pledged under the Additional New Notes Pledge Agreement to be pledged pursuant to Section 2.7(a) the Collateral Documents securing the New Notes. Upon the issuance of the Transfer New Notes in such principal amount and Servicing Agreement or Section 2.9(a) the consummation of the Pooling Restructuring, the Escrowed Documents shall be released to the Company, upon which the Company shall no longer be bound by the terms thereof. In such event, the Additional New Notes, the Additional New Notes Indenture and Servicing the Additional New Notes Pledge Agreement more than once during shall be void ab initio and any Monthly Period; it being understood that this Section 8.7(b) pledge created thereby shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementbe cancelled.
(c) Transferor The Company shall, and shall not exercise its discount option pursuant to Section 2.10 of cause the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of Pledgors to, (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (deliver to the extent Escrow Agent within thirty (30) days after the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as date hereof, each of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely original share certificates for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).Joint Venture
Appears in 1 contract
Additional Provisions. (a) The Additional Minimum Transferor Amount Counterparty and Dealer agree that, upon the effectiveness of any Forward Placement Notice or Amended Placement Notice, as applicable, in respect of the Transaction to which such Forward Placement Notice or Amended Placement Notice relates, each of the representations, warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction (including, without limitation, Dealer’s right to designate a Termination Settlement Date in respect of such Transaction pursuant to Section 10) shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction as if the Trade Date for such Transaction were such first Trading Day. Notwithstanding anything to the contrary in this Master Forward Confirmation, any Supplemental Confirmation, the Agreement, the Equity Definitions or the Swap Definitions, if Dealer designates a Termination Settlement Date with respect to a Transaction (1) following the occurrence of an Acceleration Event and such Termination Settlement Date is hereby specified to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to Counterparty’s execution of the Supplemental Confirmation relating to such Transaction, then, for purposes of such Termination Settlement Date, a Supplemental Confirmation relating to such Transaction reasonably completed by Dealer (as an additional amount if the Trade Date for such Transaction were the last day of the Forward Hedge Selling Period on which the Forward Seller sold Forward Hedge Shares for such Transaction) in accordance with the terms herein shall, notwithstanding the provisions under “Conditions to Effectiveness” above, be deemed to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountimmediately effective.
(b) Transferor shall not exercise its right [Reserved.]
(c) The parties hereto intend for:
(i) each Transaction to require reassignment to it or its designee be a “securities contract” as defined in Section 741(7) of the Receivables Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code;
(ii) the rights given to Dealer pursuant to Sections 10 and 11 of this Master Confirmation to constitute “contractual rights” to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any Removed Account cash, securities or other property provided as performance assurance, credit support or collateral with respect to any Transaction to constitute “Removed Accountmargin payments” (and “transfers” under a “securities contract” as defined in the Pooling Bankruptcy Code;
(iv) all payments for, under or in connection with any Transaction, all payments for Shares and Servicing Agreementthe transfer of Shares to constitute “settlement payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) pursuant any or all obligations that either party has with respect to Section 2.7(a) any Confirmation or the Agreement to constitute property held by or due from such party to margin, guaranty or settle obligations of the Transfer and Servicing other party with respect to the transactions under the Agreement (including each Transaction) or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementother agreement between such parties.
(d) So long Notwithstanding any other provision of the Agreement or any Confirmation, in no event will Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the Initial Number of Shares (as Regulation RR is in effect adjusted for stock splits and similar events) (the “Capped Number”). The Capped Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in (1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the Equity Definitions so long as, in the case of this sub-clause (2), such event is within Counterparty’s control, (y) Merger Events requiring corporate action of Counterparty (or any surviving entity of the Counterparty hereunder in connection with any such Merger Event) and (z) Announcement Events that are not outside Counterparty’s control. Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated on each day that any Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with transactions in the Shares (other than the Transactions) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Counterparty shall not have delivered the Number of Shares otherwise deliverable as a result of this Section 14(d) (the resulting deficit, the “Deficit Shares”), Counterparty shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, when, and to the extent that that, (A) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the sum Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect of (i) other transactions prior to such date which prior to the Seller’s Interest relevant date become no longer so reserved and (iiC) amounts on deposit Counterparty additionally authorizes any unissued Shares that are not reserved for other transactions (excluding such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall promptly notify Dealer of the occurrence of any investment earnings on depositof the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares to be delivered) and, as promptly as reasonably practicable, shall deliver such Shares thereafter. Counterparty shall not, until Counterparty’s Share delivery obligations under the Transactions have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance Event for the Excess Funding Account (to the extent the Excess Funding Account meets the requirements settlement or satisfaction of Rule 5(f) of Regulation RR) is less any transaction or obligation other than the Required Seller’s Interest as of the last day of Transactions or reserve any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding Shares for future issuance for any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater purpose other than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy Counterparty’s obligations to Dealer under the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRTransactions.
(e) For The parties intend for each Confirmation to constitute a “Contract” as described in the avoidance letter dated October 6, 2003 submitted on behalf of doubtG▇▇▇▇▇▇, in no event shall either S▇▇▇▇ &Co. to P▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Indenture Trustee or staff of the Owner Trustee have Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter (the “Interpretive Letter”) dated October 9, 2003. Counterparty agrees to take all actions, and to omit to take any responsibility to monitor compliance with oractions, subject to their obligations under reasonably requested by Dealer in good faith based on the advice of counsel for the Transaction Documents, enforce compliance with, or be charged to comply with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoInterpretive Letter.
(f) The Servicer will include parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement) to comply with the amount requirements of Rule 10b5-1(c)(1)(i)(A) under the Seller’s Interest as Exchange Act and for each Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to be interpreted to comply with the most recent RR Measurement Date (or, with respect to requirements of Rule 10b5-1(c) under the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)Exchange Act.
(g) Comenity Bank confirms, [Counterparty represents and warrants to that it has received, read and agrees with, understands Dealer’s “Risk Disclosure Statement Regarding OTC Derivatives Products” and irrevocably and unconditionally undertakes to acknowledges the Issuer and terms thereof as if it had signed the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules Risk Disclosure Statement Verification contained therein as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).date hereof.]3
Appears in 1 contract
Sources: Equity Distribution Agreement (CareTrust REIT, Inc.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is 7.2.1 Smith Brothers authorizes the Bank to carry out the remedial steps s▇▇ ▇▇rth in Section 7.1 above and irrevocably makes, constitutes, and appoints the Bank and any officer or agent thereof with full power of substitution as Smith Brothers's true and lawful attorney in fact in connection ther▇▇▇▇▇.
7.2.2 Smith Brothers hereby specified as an additional amount waives, to the full extent permitted by law, t▇▇ ▇▇nefit of all appraisement, valuation, stay, extension and redemption laws now or hereafter in force and all rights of marshaling in the event of any sale or other disposition of any of the Collateral.
7.2.3 Prior to any such disposition of Collateral, the Bank may, at its option, cause any of the Collateral to be considered part repaired or reconditioned in such manner and to such extent as the Bank reasonably deems advisable, and any reasonable sums expended therefor by the Bank shall constitute loans to be repaid by Smith Brothers and shall be secured hereby. The Bank shall have the ▇▇▇▇▇ to pursue any remedy that it may have hereunder or by law. If a sufficient sum is not realized from any such disposition of Collateral to pay all of the Minimum Transferor Amount pursuant Obligations, Smith Brothers hereby promises and agrees to clause (b) pay the Bank any defici▇▇▇▇ and the security interest herein granted shall continue in accordance with Section 3.1 hereof in Collateral not so disposed of.
7.2.4 The receipt of the definition Bank for the purchase money paid at any sale of Minimum Transferor AmountCollateral made by the Bank shall be a sufficient discharge therefor to any purchaser of any of the Collateral sold as provided above. No such purchaser (or his or its representatives or assigns) other than the Bank, after paying such purchase money and receiving such receipt, shall be bound to see to the application of such purchase money or any part thereof or be answerable in any manner for any loss, misapplication or nonapplication of any such purchase money, or be bound to inquiry as to the authorization, necessity, expediency or regularity of any such sale.
(b) Transferor 7.2.5 Under no circumstances shall the Bank be deemed to assume any responsibility for or obligation or duty with respect to any part or all of the Collateral of any nature or kind, or any matter or proceedings arising out of or relating thereto, but the same shall be at Smith Brothers's sole risk at all times, it being acknowledged that ▇▇▇ ▇ank will act in a commercially reasonable manner. The Bank shall not exercise be required to take any action of any kind to collect, preserve or protect its right or Smith Brothers's rights in the Collateral or against other parties. ▇▇▇ ▇ank's prior recourse to require reassignment to it any part or its designee all of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant Collateral shall not constitute a breach condition of this Indenture Supplement if at the time of such failureany demand, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer suit or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either proceeding for payment or collection of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoObligations.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, the parties agree that an Additional Termination Event will occur as provided in no event shall either Part 1(h)(ii) of the Indenture Trustee Schedule upon redemption or purchase of the Owner Trustee have any responsibility Series 2011-2 Class A1 Notes pursuant to monitor compliance Condition 5.5 (Optional Redemption for Tax and other Reasons) of the terms and conditions of the Notes, notwithstanding that the Party A Interim Exchange Amount and Party B Interim Exchange Amount are also payable upon such redemption;
(ii) An amount calculated in accordance with orSection 6(e) of the Agreement following designation of an Early Termination Date as a result of such Additional Termination Event will be paid by one party to the other, subject provided that, for the purposes of such calculation the obligations of the parties in respect of this Transaction due after the Early Termination Date shall be deemed to their obligations under be limited to the Transaction Documents, enforce compliance with, or be charged with knowledge payment of Regulation RR or any rules or regulations promulgated the Party A and Party B Floating Amounts on the basis of the principal amount outstanding of the Series 2011-2 Class A1 Notes before taking into account the redemption mentioned in connection therewith, nor shall it be liable sub-part (i) above and without regard to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or Series 2011-2 Class A1 Notes which have been issued pursuant to Condition 15 (Notes Issues) after the breach of any related term Effective Date of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.Transaction; and
(fiii) The Servicer will include To the extent that Party B makes only a partial payment of the Party B Final Exchange Amount (or fails to pay any Party B Final Exchange Amount) to Party A, Party A shall reduce the amount of the Seller’s Interest as of Party A Final Exchange Amount by the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees withsame percentage reduction, and irrevocably and unconditionally undertakes shall have no other obligation to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions Party B in respect of such payment or vice versa. constitute an Event of Default under this Agreement and the Excess Collateral failure by Party B to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount relating under this Clause 2(iii) as a result of there being insufficient monies available for such purpose according to the Series 2019-A notesrelevant Issuer Priority of Payments as set out in the Cash Management Agreement or in the Issuer Deed of Charge, (ii) Comenity Bank as the case may be, will not (and will not permit the Depositor or any constitute an Event of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted Default under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)this Agreement.
Appears in 1 contract
Sources: Isda Master Agreement
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor shall not exercise its discount option pursuant to The last sentence of Section 2.10 4.03(e) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.8 replaced by the following two sentences: “All computations of interest accrued on any Certificate of a Group 1 Class will be made on the basis of the Transfer actual number of days in each Interest Accrual Period and Servicing Agreementa year assumed to consist of 360 days. All computations of interest accrued on any Certificate of a Group 2 Class will be made as if each year consisted of twelve months of thirty days each.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that the sum Distribution Date, shall be distributed on certain Classes of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certificates in the Excess Funding Account (amounts and in the manner determined as specified under “Description of the Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Group 2 Classes” in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRProspectus Supplement.”
(e) For The following proviso is hereby added at the avoidance end of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(35.04(c) of the EU Securitization Regulation Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan underlying the Group 2 MBS for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (as supplemented by Article 8 other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s). After the Class Balances of the CRR Delegated Regulation)Group 2 Classes have been reduced to zero, by holding, through any related Interest Reserve Amounts remaining in the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating Certificate Account shall be distributed to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest related Holders in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)immediately following calendar month.”
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified Without limiting any other right of termination under this Agreement, the Port Authority shall have the right to terminate this Agreement and the letting hereunder without cause, at any time on one hundred eighty (180) days' notice to the Lessee. In the event of termination pursuant to this Section, this Agreement and the letting hereunder shall cease and expire as an additional amount to be considered part if the effective date of termination stated in the notice were the date originally fixed herein for the expiration of the Minimum Transferor Amount pursuant to clause (b) term of the definition of Minimum Transferor Amountletting.
(b) Transferor Notwithstanding the foregoing provision, the Port Authority shall, within thirty (30) days after giving the notice referred to in paragraph (a), tender to the Lessee an agreement, which shall not exercise constitute an offer to amend this Agreement, providing for the letting to the Lessee of other space at the World Trade Center, consisting of a single block of space, substantially similar in size to the premises but the configuration of such and its right to require reassignment to it or its designee location within the Facility shall be solely within the discretion of the Receivables Port Authority. Such agreement shall contain an exhibit depicting such other space, the effective date upon which the letting of such space shall commence, a statement of the number of rentable square feet comprising such space and the annual basic rental payable for such space which shall be computed at the same annual per rentable square foot rate as the basic rental set forth in any Removed Account or “Removed Account” (this Agreement. In addition to the annual basic rental payable for such space the agreement will provide that the Lessee will continue to pay additional basic rental as defined provided in the Pooling Schedule A attached to this Agreement based on the number of square feet in such space. The agreement will also provide that the Lessee will surrender, vacate and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) yield up to the extent Port Authority the premises on the date preceding the effective date the letting of such space shall commence and that the sum of Port Authority will, (i1) finish the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) space or cause the same to be finished at no cost to the Lessee substantially in the Excess Funding Account (same manner and to the same extent as the Excess Funding Account meets the requirements of Rule 5(fpremises, (2) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eacharrange for or, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failurePort Authority's option, reimburse the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever Lessee for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely its reasonable expenditures for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).moving the
Appears in 1 contract
Sources: Lease Agreement (Globus International Resources Corp)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor shall not exercise its discount option pursuant to The last sentence of Section 2.10 4.03(e) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement replaced by the following two sentences: “All computations of interest accrued on any Certificate of a Group 1 or Section 2.8 Group 2 Class will be made on the basis of the Transfer actual number of days in each Interest Accrual Period and Servicing Agreementa year assumed to consist of 360 days. All computations of interest accrued on any Certificate of a Group 3 Class will be made as if each year consisted of twelve months of thirty days each.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that the sum Distribution Date, shall be distributed on certain Classes of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certificates in the Excess Funding Account (amounts and in the manner determined as specified under “Description of the Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Group 3 Classes” in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRProspectus Supplement.”
(e) For The following proviso is hereby added at the avoidance end of doubt, in no event shall either Section 5.04(c) of the Indenture Trustee or Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Owner Trustee Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan underlying the Group 3 MBS for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s). After the Class Balances of the Group 3 Classes have any responsibility been reduced to monitor compliance with orzero, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term Interest Reserve Amounts remaining in the Certificate Account shall be distributed to the related Holders in the immediately following calendar month.” LT1 FA1, FX1 $16,979,530 (1) (2) LT2 FA2, FX1 43,203,985 (3) (2) LT3 FA3, FX1 74,834,075 (4) (2) LT4 FA, FX 231,842,340 (5) (2) LT5 A1, A2 60,938,000 (6) (2) LT6 A2 335,224,697 (6) (2) Class RL (7) (7)
(1) During each Interest Accrual Period, Lower Tier Interest LT1 will bear interest at an annual rate equal to the product of this Indenture Supplement(x) a fraction, any Transaction Document or any other document made or delivered pursuant hereto or theretoexpressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Subgroup 1a MBS on the related Distribution Date, and the denominator of which is the principal balance of the FA1 Class immediately preceding that Distribution Date, multiplied by (y) a fraction, expressed as a percentage, the numerator of which is 360, and the denominator of which is the actual number of days in the related Interest Accrual Period.
(f2) The Servicer Final Distribution Date for this Class will include be the amount of same as the Seller’s Interest Final Distribution Date for the related Companion Class(es); provided, however, that if this Class has two or more Companion Classes and their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as of the most recent RR Measurement Final Distribution Date for the related Companion Class having the latest (or, with respect to the first such statement following the Closing Dateor later, as of the Closing case may be) Final Distribution Date) on each statement delivered pursuant to Section 5.3(a).
(g3) Comenity Bank confirmsDuring each Interest Accrual Period, represents and warrants Lower Tier Interest LT2 will bear interest at an annual rate equal to and agrees withthe product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Subgroup 1b MBS on the related Distribution Date, and irrevocably the denominator of which is the principal balance of the FA2 Class immediately preceding that Distribution Date, multiplied by (y) a fraction, expressed as a percentage, the numerator of which is 360, and unconditionally undertakes the denominator of which is the actual number of days in the related Interest Accrual Period.
(4) During each Interest Accrual Period, Lower Tier Interest LT3 will bear interest at an annual rate equal to the Issuer product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Subgroup 1c MBS on the related Distribution Date, and the Indenture Trusteedenominator of which is the principal balance of the FA3 Class immediately preceding that Distribution Date, solely for multiplied by (y) a fraction, expressed as a percentage, the benefit numerator of which is 360, and the denominator of which is the actual number of days in the related Interest Accrual Period.
(5) During each Applicable InvestorInterest Accrual Period, in connection with Lower Tier Interest LT4 will bear interest at an annual rate equal to the EU Due Diligence and Retention Rules product of (x) a fraction, expressed as in effect a percentage, the numerator of which is the aggregate amount of interest distributable on the Closing Group 2 MBS on the related Distribution Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for and the purposes denominator of which is the notional principal balance of the EU Due Diligence FX Class immediately preceding that Distribution Date, multiplied by (y) a fraction, expressed as a percentage, the numerator of which is 360, and Retention Rulesthe denominator of which is the actual number of days in the related Interest Accrual Period.
(6) During each Interest Accrual Period, Lower Tier Interests LT5 and LT6 each will retain bear interest at an annual rate equal to the product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on an ongoing basis a material net economic interest that the Group 3 MBS on the related Distribution Date, and the denominator of which is not less than 5% the aggregate principal balance of the nominal value of the securitized exposures with respect to the Series 2019-A notesA1 and A2 Classes immediately preceding that Distribution Date, in the form of a first loss tranche in accordance with the text of option multiplied by (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulationy), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. The following provisions are hereby added to the Trust Agreement solely in connection with the Series of Certificates authorized by this Issue Supplement.
(a) Section 2.12(a) of the Trust Agreement is hereby deleted and replaced in its entirety by the following:
(a) The Additional Minimum Transferor Amount Issuer hereby declares its intent that the portion of the Trust consisting of the Mortgage-Backed Securities and all proceeds thereof and the Certificate Account and all amounts held therein or credited thereto will constitute, and the affairs of such portion of the Trust will be conducted so as to qualify as, one or more REMICs pursuant to Section 860D of Subchapter M of Chapter 1 of the Code. The RL Class Certificate is hereby specified designated as an additional amount to be considered part the sole “residual interest” in the Lower Tier REMIC within the meaning of the Minimum Transferor Amount pursuant to clause (bSection 860G(a)(2) of the definition Code, and the Lower Tier Regular Interests are hereby designated as “regular interests” in such REMIC within the meaning of Minimum Transferor AmountSection 860G(a)(1) of the Code. The R Class Certificate is hereby designated as the sole “residual interest in the Upper Tier REMIC within the meaning of Section 860G(a)(2) of the Code, and each remaining Class of Certificates (other than the RL Class Certificate and the EF and GF Class Certificates) and Upper Tier Regular Interest EF-UT and Upper Tier Regular Interest GF-UT are hereby designated as a “regular interests” in the Upper Tier REMIC within the meaning of Section 860G(a)(1) of the Code. The date designated as the “startup day” of each REMIC within the meaning of Section 860G(a)(9) of the Code will be the Settlement Date. In addition, for federal income tax purposes, the remaining portion of the Trust, including Upper Tier Regular Interest EF-UT and Upper Tier Regular Interest GF-UT, the Assigned Rights and the Cap Accounts and all amounts held therein or credited thereto will be treated as a grantor trust under Subpart E, Part I of Subchapter J of the Code and not as an association taxable as a corporation. The Trustee and the Holders of the Certificates will take any action necessary to create and maintain the status of the remaining portion of the Trust as a grantor trust for federal income tax purposes and will assist one another as necessary to create and maintain such status.
(b) Transferor shall not exercise its right to require reassignment to it or its designee The following section is hereby added immediately after Section 2.12 of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Trust Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).:
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Net Settlement Fund will be distributed to Authorized Claimants who have a Recognized Claim greater than $10.00. Each Authorized Claimant shall recover his, her, or its pro rata share of the Net Settlement Fund. The pro rata share shall be the Authorized Claimant’s Recognized Claim divided by the total of all Recognized Claims to be considered part paid from the Net Settlement Fund, multiplied by the total amount in the Net Settlement Fund. Distributions will be made to Authorized Claimants after all claims have been processed and after the Court has finally approved the Settlement. All checks shall become stale one hundred and twenty (120) calendar days from the date of issuance, at which time all funds remaining for such stale checks shall be irrevocably forfeited and such funds shall be made available to be redistributed if economically feasible. Subsequent to the passage of six (6) months from the distribution, if Lead Counsel, in consultation with the Claims Administrator, determines that it is cost-effective to do so, the Claims Administrator will conduct a redistribution of any funds remaining in the Net Settlement Fund by reason of tax refunds, uncashed checks or otherwise to Authorized Claimants who have cashed their initial distribution checks, after payment from the Net Settlement Fund of any unpaid costs or fees incurred in administering the funds, including for such re-distribution. After any redistribution, or if a redistribution is not undertaken, any balance that still remains in the Settlement Fund shall be donated to a non-sectarian, §501(c)(3) non-profit organization. If a Class Member has more than one purchase/acquisition or sale of ATB Tokens during the Class Period, all purchases/acquisitions and sales shall be matched on a First In, First Out (“FIFO”) basis. Class Period sales will be matched first against any ATB Tokens held at the beginning of the Minimum Transferor Amount pursuant Class Period, and then against purchases/acquisitions in chronological order, beginning with the earliest purchase/acquisition made during the Class Period. Purchases or acquisitions and sales of ATB Tokens shall be deemed to clause (b) have occurred on the “contract” or “trade” date as opposed to the “settlement” or “payment” date. The receipt or grant by gift, inheritance or operation of law of ATB Tokens during the definition of Minimum Transferor Amount.
(b) Transferor Class Period shall not exercise its right to require reassignment to it be deemed a purchase or its designee acquisition of these ATB Tokens for the Receivables in calculation of an Authorized Claimant’s Recognized Loss Amount for these shares, nor shall the receipt or grant be deemed an assignment of any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) claim relating to the extent that the sum purchase/acquisition of such ATB Tokens unless: (i) the Sellerdonor or decedent purchased or otherwise acquired such ATB Tokens during the Class Period; (ii) no Claim Form was submitted by or on behalf of the donor, on behalf of the decedent, or by anyone else with respect to such ATB Tokens; and (iii) the assignment is specifically provided for in the instrument of gift or assignment. The date of covering a “short sale” is deemed to be the date of purchase or other acquisition of ATB Tokens, and the date of a “short sale” is deemed to be the date of sale of ATB Tokens. The Recognized Loss amount for “short sales” is zero. In the event that a claimant carried a short position in ATB Tokens, the earliest Class Period purchases/acquisitions shall be matched against such short position and not be matched against chronologically subsequent sales during the Class Period until that short position is fully covered. To the extent an Authorized Claimant had a market gain from his, her, or its overall transactions in ATB Tokens during the Class Period, the value of the Recognized Claim will be zero. Such Authorized Claimants will in any event be bound by the Settlement. To the extent that an Authorized Claimant suffered an overall market loss on his, her, or its overall transactions in ATB Tokens during the Class Period, but that market loss was less than the total Recognized Claim calculated above, then the Authorized Claimant’s Interest Recognized Claim shall be limited to the amount of the actual market loss. For purposes of determining whether an Authorized Claimant had a market gain from his, her, or its overall transactions in ATB Tokens during the Class Period or suffered a market loss, the Claims Administrator shall determine the difference between: (i) the Total Purchase Amount9; and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest Sales Proceeds10 and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) Holding Value.11 This difference will be equal to deemed an Authorized Claimant’s market gain or greater than loss on his, her, or its overall transactions in ATB Tokens during the Required Seller’s Interest on or before Class Period. THE COURT IN CHARGE OF THIS CASE MUST DECIDE WHETHER TO APPROVE THE SETTLEMENT. PAYMENTS WILL BE MADE IF THE COURT APPROVES THE SETTLEMENT AND, IF THERE ARE ANY 9 The “Total Purchase Amount” is the following RR Measurement Date; provided, that failure to satisfy total the foregoing covenant shall not constitute a breach of this Indenture Supplement if at amount the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either Claimant paid for all of the Indenture Trustee ATB Tokens purchased or acquired during the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoClass Period.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Settlement Agreement
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor shall not exercise its discount option pursuant to The last sentence of Section 2.10 4.03(e) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.8 replaced by the following two sentences: “All computations of interest accrued on any Certificate of a Group 1 Class will be made on the basis of the Transfer actual number of days in each Interest Accrual Period and Servicing Agreementa year assumed to consist of 360 days. All computations of interest accrued on any Certificate of a Group 2 Class will be made as if each year consisted of twelve months of thirty days each.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that the sum Distribution Date, shall be distributed on certain Classes of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certificates in the Excess Funding Account (to amounts and in the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest manner determined as specified under “Description of the last day Certificates – Distributions of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum – Allocation of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certain Prepayment Premiums” in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRProspectus Supplement.”
(e) For The following proviso is hereby added at the avoidance end of doubt, in no event shall either Section 5.04(c) of the Indenture Trustee or Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Owner Trustee Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan underlying the Group 2 MBS for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s). After the Class Balances of the Group 2 Classes have any responsibility been reduced to monitor compliance with orzero, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term Interest Reserve Amounts remaining in the Certificate Account shall be distributed to the related Holders in the immediately following calendar month.” LT1 FA, SA $488,671,969 (1) (2) LT2 A1, X2 74,165,000 (3) (2) LT3 A2, X2 412,357,071 (3) (2) Class RL (4) (4)
(1) During each Interest Accrual Period, Lower Tier Interest LT1 will bear interest at an annual rate equal to the product of this Indenture Supplement(x) a fraction, any Transaction Document or any other document made or delivered pursuant hereto or theretoexpressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 1 MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the SA Class immediately preceding that Distribution Date, multiplied by (y) a fraction, expressed as a percentage, the numerator of which is 360, and the denominator of which is the actual number of days in the related Interest Accrual Period.
(f2) The Servicer Final Distribution Date for this Class will include be the amount of same as the Seller’s Interest Final Distribution Date for the related Companion Class(es); provided, however, that if this Class has two or more Companion Classes and their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as of the most recent RR Measurement Final Distribution Date for the related Companion Class having the latest (or, with respect to the first such statement following the Closing Dateor later, as of the Closing case may be) Final Distribution Date) on each statement delivered pursuant to Section 5.3(a).
(g3) Comenity Bank confirmsDuring each Interest Accrual Period, represents Lower Tier Interests LT2 and warrants LT3 each will bear interest at an annual rate equal to and agrees withthe product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 2 MBS on the related Distribution Date, and irrevocably and unconditionally undertakes to the Issuer and denominator of which is the Indenture Trustee, solely for notional principal balance of the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing X2 Class immediately preceding that Distribution Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that multiplied by (iy) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option 12.
(d4) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender's Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Revolving Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the Maximum Revolving Loan Available Amount. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving Loan Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender's Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed drawings under such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender's Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made aftet 11:00 a.m. Houston time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer's gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the Maximum Revolving Loan Available Amount (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Revolving Loans. Agent will pay to each Revolving Loan Lender such Lender's Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it each Letter of Credit equal to the greater of (x) $500 or its designee (y) an amount equal to the Margin Percentage applicable from time to time with respect to LIBOR Borrowings multiplied by the daily average amount available for drawings under each Letter of Credit (and computed on the basis of the Receivables actual number of days elapsed in any Removed Account a year composed of 360 days), in each case for the period from and including the date of issuance of such Letter of Credit to and including the date of expiration or “Removed Account” (as defined termination thereof, such fee to be due and payable in advance on the Pooling and Servicing Agreement) pursuant to Section 2.7(a) date of the Transfer and Servicing Agreement or Section 2.9(a) issuance thereof. Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right product of such Lender's Revolving Loan Commitment Percentage times the Transferor pursuant to Section 2.7(b) amount of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementsuch fees.
(cvi) Transferor shall not exercise its discount option pursuant to Section 2.10 The issuance by the applicable Issuer of the Pooling and Servicing Agreement or Section 2.8 each Letter of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is Credit shall, in effect (x) addition to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) conditions precedent set forth in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachSection 5 hereof, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)Agent, and (ivB) Comenity Bank will provide ongoing confirmation that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Comenity Bank’s continued compliance with its obligations described in (i) Credit as Agent shall have reasonably requested and (ii) above in or concurrently are not inconsistent with the delivery terms of each statement delivered pursuant to Section 5.3(a).this
Appears in 1 contract
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give the Agent notice requesting each issuance, increase or extension of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as the Agent may reasonably request. Upon receipt of such notice, the Agent shall promptly notify the Issuer and each other Revolving Loan Lender of the contents thereof and of such Lender's Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued, increased or extended if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Revolving Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the Maximum Revolving Loan Available Amount. On each day during the period commencing with the issuance, increase or extension of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving Loan Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender's Revolving Loan Commitment Percentage of the sum of the amount then available for drawings under such Letter of Credit plus any unpaid and outstanding Reimbursement Obligations relating to Letters of Credit which have already been drawn against.
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Issuer shall promptly notify the Agent and, thereafter, the Agent shall promptly notify the Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date. If at any time any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing or in respect of an acceptance created in connection with a drawing under such Letter of Credit, each Revolving Loan Lender will pay to the Agent, for the account of the Minimum Transferor Issuer, immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by the Borrower, an amount equal to such Lender's Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 11:00 a.m. Houston time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period.
(iv) The Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse the Issuer, by payment to the Agent for the account of the Issuer, for any amount paid by any Issuer upon any drawing under any Letter of Credit, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the Maximum Revolving Loan Available Amount (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Revolving Loans. Agent will pay to each Revolving Loan Lender such Lender's Revolving Loan Commitment Percentage of all amounts received from the Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right The Borrower will pay to require reassignment the Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it each Letter of Credit equal to the greater of (x) $500 or its designee (y) an amount, calculated on the basis of the Receivables actual number of days elapsed in any Removed Account a year composed of 360 days and on the basis of the face amount of such Letter of Credit available for drawings under such Letter of Credit from time to time, in each case for the period from and including the date of issuance, increase or “Removed Account” extension of such Letter of Credit to and including the date of expiration or termination thereof at the Margin Percentage (on a per annum basis) from time to time in effect applicable to Eurodollar Rate Borrowings (as defined in the Pooling and Servicing Interest Rate Agreement) pursuant under Revolving Notes, such fee to Section 2.7(abe due and payable in arrears on (A) each Interest Payment Date applicable to Base Rate Borrowings which occurs after the date of issuance, increase or extension thereof and prior to the expiration or termination of such Letter of Credit, and (B) on the date of expiration or termination of such Letter of Credit. The Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the product of such Lender's Revolving Loan Commitment Percentage times the amount of such fees. The Borrower will also pay to the Agent at the Principal Office for the account of the Transfer and Servicing Agreement or Section 2.9(a) Issuer alone an amount, calculated on the basis of the Pooling daily average amount available for drawings under the applicable Letter of Credit from and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right including the date of issuance, increase or extension of such Letter of Credit to and including the date of expiration or termination thereof at 0.1875% (on a per annum basis), such fee to be due and payable in advance on the date of issuance, increase or extension of the Transferor pursuant applicable Letter of Credit. All fees relating to Section 2.7(b) the Existing Letters of Credit for any period prior to the Transfer and Servicing Agreement or Section 2.9(b) of Effective Date shall be paid in full on the Pooling and Servicing AgreementEffective Date.
(cvi) Transferor The issuance, increase or extension by the applicable Issuer of each Letter of Credit shall, in addition to the conditions precedent set forth in Section 5 hereof, be subject to the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to the Agent, and (B) that the Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Credit as the Agent or the Issuer shall have reasonably requested and are not exercise its discount option pursuant to Section 2.10 inconsistent with the terms of this Agreement. In the Pooling event of a conflict between the terms of this Agreement and Servicing Agreement or Section 2.8 the terms of any Application (including the Transfer charging of any fees other than normal and Servicing Agreementcustomary reimbursable expenses), the terms hereof shall control.
(dvii) So long as Regulation RR is If the Agent fails to send to any Lender its portion of any payment of Reimbursement Obligations in effect (x) respect of any Letter of Credit or letter of credit fees, to the extent that timely received by the sum Agent, by the close of (i) business on the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”)such payment was received, the Transferor Agent shall cause pay to such Lender interest on its portion of such payment from the Seller’s Interest day such payment was timely received by the Agent until the date such Lender's portion of such payment is sent to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; providedLender, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRFederal Funds Rate.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Additional Provisions. Notwithstanding anything to the contrary contained in Sections 28(a) through (ak) The Additional Minimum Transferor Amount is above: Landlord and Tenant hereby specified agree that (i) Landlord has provided Tenant with an estimated budget set forth in a letter from R▇▇▇▇▇▇ ▇. Weiblan of Landlord dated October 28, 2008 to M▇. ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Budget") reflecting aggregate estimated costs for the Tenant Improvements and related costs and fees in an amount equal to $5,608,311.00 (the “TI Amount”), and (ii) the general contractor shall be Renaissance (the “General Contractor”). Landlord agrees to use commercially reasonable efforts to enter into a maximum guaranteed price construction contract acceptable to Landlord with the General Contractor (modified as an additional amount appropriate) to be considered part of construct the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined Tenant Improvements. Landlord and Tenant further agree that in the Pooling event there are additional unforeseen costs over and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that above the sum of (i) the Seller’s Interest TI Amount and (ii) amounts on deposit the aggregate of approved additional costs for Change Orders, if any, requested by Tenant and approved by Landlord in accordance with Section 28(e) (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement DateCost Overruns”), Tenant shall be responsible up to a maximum of $4,000,000 of such Cost Overruns. Landlord shall pay the Transferor TI Amount (less the Tenant Improvement Allowance per Section 28), approved Tenant Change Orders and any Cost Overruns directly to the General Contractor, and Tenant shall cause reimburse Landlord for such amounts within fifteen (15) days after receipt of an invoice or written demand from Landlord. Landlord and Tenant agree and acknowledge that none of the Sellerforegoing shall affect or limit Tenant’s Interest rights under Section 28(a) to be increased request the Additional Allowance.”
3. The following sentence in lines 16-18 of Section 28(a) is hereby deleted in its entirety: “In lieu of the foregoing, Tenant shall have the right upon notice to an amount such Landlord to apply the Cost Savings towards additional improvements to the Premises.” Landlord and Tenant hereby confirm that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge event there is any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, Cost Savings with respect to the first Tenant Improvements, such statement following Cost Savings shall be applied to decrease the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche Minimum Annual Rent in accordance with the text fifth sentence of option (d) of Article 6(3Section 28(a) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Original Lease.
Appears in 1 contract
Sources: Lease Agreement (Shutterfly Inc)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor shall not exercise its discount option pursuant to The last sentence of Section 2.10 4.03(e) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.8 replaced by the following two sentences: “All computations of interest accrued on any Certificate of a Group 1 Class will be made on the basis of the Transfer actual number of days in each Interest Accrual Period and Servicing Agreementa year assumed to consist of 360 days. All computations of interest accrued on any Certificate of a Group 2 Class will be made as if each year consisted of twelve months of thirty days each.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that Distribution Date, shall be distributed on certain Classes of Certificates in the amounts and in the manner determined as specified under “Description of the Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums” in the Prospectus Supplement.”
(e) The following proviso is hereby added at the end of Section 5.04(c) of the Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan underlying the Group 2 MBS for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s). In addition, for purposes of the payment of interest on the Certificates on the Distribution Date in March 2015, ▇▇▇▇▇▇ ▇▇▇ will deposit in the Trust an aggregate amount equal to the sum of (i) a single day’s net interest accrued on the Seller’s Interest and Mortgage Loans underlying the Group 2 MBS for the month of December 2014 plus (ii) amounts a single day’s net interest accrued on deposit (excluding the Mortgage Loans underlying the Group 2 MBS for the month of January 2015. After the Class Balances of the Group 2 Classes have been reduced to zero, any investment earnings on deposit) related Interest Reserve Amounts remaining in the Excess Funding Certificate Account (shall be distributed to the extent related Holders in the Excess Funding Account meets immediately following calendar month.” LT1 FA, SA $315,891,089 (1) (2) LT2 AB1, X2 13,380,000 (3) (2) LT3 AB2, X2 87,166,295 (3) (2) LT4 A1, X2 98,113,000 (3) (2) LT5 A2, X2 639,223,000 (3) (2) Class RL (4) (4)
(1) During each Interest Accrual Period, Lower Tier Interest LT1 will bear interest at an annual rate equal to the requirements product of Rule 5(f(x) a fraction, expressed as a percentage, the numerator of Regulation RR) which is less than the Required Seller’s Interest as aggregate amount of interest distributable on the Group 1 MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the last day of any Monthly Period SA Class immediately preceding that Distribution Date, multiplied by (eachy) a fraction, an “RR Measurement Date”)expressed as a percentage, the Transferor shall cause numerator of which is 360, and the Seller’s Interest to be increased to an amount such that denominator of which is the sum actual number of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) days in the Excess Funding Account related Interest Accrual Period.
(to the extent the Excess Funding Account meets the requirements of Rule 5(f2) of Regulation RR) The Final Distribution Date for this Class will be equal to or greater than the Required Seller’s Interest on or before same as the following RR Measurement DateFinal Distribution Date for the related Companion Class(es); provided, however, that failure to satisfy if this Class has two or more Companion Classes and their Final Distribution Dates are not the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failuresame, the transaction contemplated Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (or later, as the case may be) Final Distribution Date.
(3) During each Interest Accrual Period, Lower Tier Interests LT2, LT3, LT4 and LT5 each will bear interest at an annual rate equal to the product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 2 MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the X2 Class immediately preceding that Distribution Date, multiplied by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR12.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f4) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that 24.1 Tenant has deposited the sum of Seven Hundred Fifty Thousand Dollars ($750,000) (the "Deposit") in trust with Spiegel S▇▇▇▇▇ in trust (the "Escrow Agent") who is hereby instructed as follows:
a) as long as there has been no notice of default by the Landlord to the Tenant, a copy of which has been received by the Escrow Agent (or if such a notice of default has been sent a new notice has been received by the Escrow Agent that the default has been remedied) and no payments have been made by the Escrow Agent to the Landlord from the Deposit which have not been replenished by the Tenant, the Escrow Agent shall return to the Tenant from the Deposit or the balance thereof, on each anniversary of the Commencement Date or as soon thereafter as reasonably possible thereafter a sum equal to Seventy-Five Thousand Dollars ($75,000);
b) pending disbursement, the Deposit will be invested by the Escrow Agent in term deposits of a Canadian chartered bank as are available to it and all interest earned shall be for the account of the Tenant and shall be remitted to the Tenant annually, until the Escrow Agent receives a written notice from the Landlord in accordance with paragraph c) of this section 24.1;
c) if the Escrow Agent receives a written notice from the Landlord certifying that there has been an Event of Default with respect to a material obligation contained herein (it being agreed and understood that failure to pay any amount owing by the Tenant or any obligation of the Tenant involving in excess of Five Thousand Dollars ($5,000) shall be deemed to be material for the purposes hereof) or that this lease has been disclaimed or terminated or otherwise modified or amended to release the Tenant thereunder from any or all of its obligations hereunder, prior to the expiry of the term set out therein, as a result of the Tenant becoming bankrupt or insolvent, or any action of a trustee in bankruptcy of the Tenant, or the Tenant becoming subject to proceedings under the Companies Creditors Arrangement Act or any plan approved, or any Court Order made, in those proceedings, or the Tenant becoming subject to or taking the benefit, directly or indirectly, of any other statute relating to insolvent debtors, the Escrow Agent shall notify the Tenant in writing (the "Payment Notice") at the address provided for notice to the Tenant herein or any other address provided to the Escrow Agent by notice in writing from the Tenant. If the Tenant fails to contest the Payment Notice by way of judicial action contesting the existence of a default by the Tenant pursuant to the terms hereof or any of the other circumstances referred to above and send a copy of same to the Escrow Agent within Ten (10) business days of receipt of the Payment Notice then the Escrow Agent is hereby irrevocably instructed and directed to pay the Deposit to the Landlord unless the default relates to a failure to pay rent or other liquidated monetary obligation of the Tenant, in which case the Escrow Agent shall only pay such sums as the Landlord is claiming. Any balance of the Deposit shall be retained by the Escrow Agent in accordance with the foregoing instructions;
d) the Tenant shall be required to replenish and pay to the Escrow Agent any monies sent to the Landlord so the Escrow Agent shall at all times during the term of the Lease retain the sums as hereinabove provided;
e) the Tenant agrees to pay the Escrow Agent for all costs, out-of-pocket expenses, legal fees, charges and other expenses including a reasonable charge for time of all personnel of the Escrow Agent incurred or borne by the Escrow Agent or by reason of acting as Escrow Agent hereunder;
f) the parties hereto agree to indemnify and save harmless the Escrow Agent from and against any and all costs, claims, charges, damages, expenses, actions, causes of action and other liabilities whatsoever which the Escrow Agent may incur or for which it may become liable by reason of acting as the Escrow Agent hereunder;
g) except for the duties imposed on the Escrow Agent pursuant to this section 24.1, the Escrow Agent shall not be bound in any way by any agreement or covenant between any of the parties, whether the Escrow Agent has knowledge of same or not. Without limiting the generality of the foregoing, the Escrow Agent shall not be liable with respect to any action taken or admitted to be taken by it in good faith;
h) the Escrow Agent shall, in all cases, be entitled to rely upon and be fully protected in acting or in refraining from acting under this lease in accordance with any and all written notices, demands, objections, directions and orders or other documents received by it in accordance herewith and believed by it to be genuine and correct and to have been signed or sent by the proper person;
i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor Escrow Agent shall cause the Seller’s Interest to only be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (orrequired, with respect to the first such statement following Deposit, to take the Closing Date, as same degree of care which a reasonably prudent businessperson would take with respect to his own assets;
j) without limiting the generality of the Closing Dateforegoing, it is understood that the Escrow Agent acts hereunder as a depositary only and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form or execution of such instrument, or for the identity, authority, or rights of any person executing or depositing same;
k) the Escrow Agent shall not be required to take notice of any default of the Tenant or to take any action with respect to such default or to refrain from acting on each statement delivered pursuant a notice from the Landlord, unless notice in writing of same is given to Section 5.3(a)the Escrow Agent accompanied by the documents hereinabove described and unless it is indemnified, in a manner satisfactory to it against such expense or liability;
l) the Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own wilful misconduct or gross negligence;
m) the Escrow Agent may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or the performance of any of its duties hereunder and it shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel;
n) the Escrow Agent shall not be answerable for the default or misconduct of any agent or legal counsel employed or appointed by it, provided such agent or legal counsel shall have been selected with reasonable care;
o) the appointment of the Escrow Agent shall not have the effect of preventing Spiegel S▇▇▇▇▇ from representing and acting in their capacities as lawyers for the Landlord.
(g) Comenity Bank confirms, represents 24.2 Tenant agrees to participate in a direct deposit of the rent and warrants to and agrees with, and irrevocably and unconditionally undertakes other payments due to the Issuer Landlord hereunder in order that such payments are deposited in the Landlord's bank account at the latest by the due date of such payment (including, without limitation, the first day of each calendar month for the annual net net rent and the Indenture Trusteemonthly instalments of Operating Expenses) the whole without restricting the other obligations of Tenant hereunder.
24.3 Notwithstanding the fact that the Landlord drafted this lease and submitted it to the Tenant, solely for the benefit Tenant recognizes that the essential stipulations of each Applicable Investor, in connection with this lease were negotiable and that it understands all of its stipulations and that the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures Landlord gave it adequate explanations with respect to the Series 2019-A notesterms and conditions of this lease.
24.4 Tenant acknowledges that the execution of this lease shall constitute a conclusive presumption that all agreements and representations of every kind whatsoever, written or oral, previously entered into or made by the parties hereto or their agents, shall be solely those set forth in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) this lease.
24.5 Time shall be of the EU Securitization Regulation (as supplemented by Article 8 essence of this lease and every part thereof.
24.6 In case any suit or proceeding of law shall be brought or taken for recovery of possession of the CRR Delegated Regulation)Premises, by holdingfor the recovery of rent or any other amount due under the provisions of this lease, through or because of the Transferor (its wholly-owned subsidiary)breach of any other agreement, term or condition herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, the right Tenant shall pay to receive distributions in respect the Landlord all expenses incurred therefor, including all legal and notarial fees and expenses.
24.7 The Tenant will not place upon the Premises any machinery, equipment, article or thing that by reason of its weight, composition, qualities, or size might damage the Premises. The Tenant will not overload the floors of the Excess Collateral Amount relating Premises. If any damage is caused to the Series 2019-A notesPremises by any machinery, (ii) Comenity Bank will not (and will not permit equipment, article or thing or by overloading or by any act, neglect or misuse on the Depositor part of Tenant or any of its Affiliates servants, agents or employees or any customer or person having business with the Tenant, the Tenant will immediately pay to Landlord the cost of restoring the same provided that in no event shall Tenant be liable for any damages which would not have been caused had the Landlord met the specifications for the construction of the Building as provided in Schedule B.
24.8 The Tenant warrants that no obnoxious odours, smells, dust or noise will emanate from the Premises as a result of the operations conducted by the Tenant. Accordingly, the Tenant agrees that should such obnoxious odours, smells, dust or noise conditions exist, it will, at its own expense, take such steps as may be necessary to rectify the same, including, if necessary, the installation of a vapour barrier between the Premises and the remainder of the Building. The Tenant will retain the services, at its expense, of a reputable pest extermination company to regularly inspect and, if required, service the Premises. All refuse will be placed in vermin-proof containers. Should the Tenant fail to commence to do any of the foregoing within five (5) days after notice is received by the Tenant from the Landlord, and to diligently complete same, then the Landlord may proceed immediately to take reasonable measures to correct any situation referred to in this section 24.8, and the Landlord shall be entitled to recover the cost thereof from the Tenant upon demand together with a supervision fee of Fifteen percent (15%) in addition to the cost.
24.9 If the Tenant fails to pay when due any amount which it owes or has agreed to pay under this lease for which Landlord may become liable including, but not limited to, Taxes and Operating Expenses, the Landlord may pay same and shall be entitled to claim the sums so paid and an additional sum of Fifteen percent (15%) allow for the retained interest Landlord's efforts from the Tenant, who will pay such sums immediately on written demand as additional rent. In such event, the Landlord, in addition to any other rights, will have the same remedies to recover same as it has for the recovery of rent in arrears.
24.10 Tenant shall arrange for removal and disposal of waste or garbage at its sole expense.
24.11 The Landlord and the Tenant agree that this lease contains confidential information with respect to the Premises, the construction thereof, the rent payable hereunder, the options available to the Tenant and the other amendments made to the standard lease of the Landlord pursuant to the negotiations between the parties, which confidential information belongs jointly to the parties hereto and Landlord and Tenant and their respective affiliates mutually covenant in favour of each other that they will not at any time disclose to any person, firm or corporation (with the exception of publication or registration of the lease but only to extent necessary to give notice thereof to subsequent acquirers or hypothecary creditors of the Building, professional advisers, any action or court proceedings that may be taken with respect to the lease and as may be required by law, including, without limitation the securities laws of the United States which are applicable to the Tenant as a result of its being listed on the NASDAQ exchange) and will exercise all necessary precautions to safeguard the secrecy of the lease and prevent unauthorized disclosures.
24.12 The parties agree that certain provisions of the Offer to lease that preceded this lease shall continue to bind the parties until the Commencement Date notwithstanding the signing this lease and those are the clause with respect to the occupancy permit, the plans and the temporary space to be subject furnished by the Landlord to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% the Tenant pending construction of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Premises.
Appears in 1 contract
Sources: Lease Amendment (Lumenon Innovative Lightwave Technology Inc)
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor The following Section 4.03(j) is hereby added to the Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that Distribution Date, shall not exercise its discount option pursuant to Section 2.10 be distributed on certain Classes of Certificates in the amounts and in the manner determined as specified under “Description of the Pooling and Servicing Agreement or Section 2.8 Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums” in the Transfer and Servicing AgreementProspectus Supplement.”
(d) So long as Regulation RR The following proviso is in effect (x) to hereby added at the extent that the sum end of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(fSection 5.04(c) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an Trust Agreement: “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, however, that failure to satisfy any Interest Reserve Amounts held in the foregoing covenant Certificate Account pending distribution shall not constitute a breach be so withdrawn by the Trustee. In the case of this Indenture Supplement if at the time of such failureeach Mortgage Loan for which interest is calculated on an actual/360 basis, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and related Interest Reserve Amounts received for each December Interest Accrual Period (y) other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s).”
(1) For each Distribution Date, this Class will bear interest during the related interest accrual period at an annual rate equal to the product of (A) a fraction, expressed as permitted by Regulation RRa percentage, the Transferor shall not sellnumerator of which is the aggregate amount of interest distributable on the MBS for that Distribution Date, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
and the denominator of which is the notional principal balance of the X Class immediately preceding that Distribution Date, multiplied by (eB) For the avoidance of doubt, 12 (but in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(aless than 0%).
(g2) Comenity Bank confirmsThe Final Distribution Date for this Class will be the same as the Final Distribution Date for its Companion Class(es); provided, represents however, that if this Class has two or more Companion Classes and warrants to and agrees withtheir Final Distribution Dates are not the same, and irrevocably and unconditionally undertakes to the Issuer and Final Distribution Date for this Class will be the Indenture Trustee, solely same as the Final Distribution Date for the benefit of each Applicable Investor, in connection its Companion Class with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that latest (i) Comenity Bankor later, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option case may be) Final Distribution Date.
(d3) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Certificate will not (have a class balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The first sentence of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a4.03(d) of the Transfer Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.9(a) replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Pooling and Servicing Agreement more than once Certificates during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of calendar month will be equal to the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementCertificate Distribution Amount for such calendar month.”
(c) Transferor The following Section 4.03(j) is hereby added to the Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that Distribution Date, shall not exercise its discount option pursuant to Section 2.10 be distributed on certain Classes of Certificates in the amounts and in the manner determined as specified under “Description of the Pooling and Servicing Agreement or Section 2.8 Certificates – Distributions of Interest – Allocation of Certain Prepayment Premiums” in the Transfer and Servicing AgreementProspectus Supplement.”
(d) So long The following proviso is hereby added at the end of Section 5.04(c) of the Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s). After the Class Balances of the Group 1 Classes or the Group 2 Classes, as Regulation RR is applicable, have been reduced to zero, any related Interest Reserve Amounts remaining in effect the Certificate Account shall be distributed to the related Holders in the immediately following calendar month.” LT1 AB1, X1 9,253,000 (1) (2) LT2 AB2, X1 64,595,739 (1) (2) LT3 A1, X1 67,857,000 (1) (2) LT4 A2, X1 473,700,000 (1) (2) LT5 AL, X2 463,932,611 (3) (2) Class RL (4) (4)
(1) During each Interest Accrual Period, Lower Tier Interests LT1, LT2, LT3 and LT4 each will bear interest at an annual rate equal to the product of (x) to a fraction, expressed as a percentage, the extent that numerator of which is the sum aggregate amount of (i) interest distributable on the Seller’s Interest Group 1 MBS on the related Distribution Date, and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to denominator of which is the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as notional principal balance of the last day of any Monthly Period X1 Class immediately preceding that Distribution Date, multiplied by (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of y) 12.
(i2) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) The Final Distribution Date for this Class will be equal to or greater than the Required Seller’s Interest on or before same as the following RR Measurement DateFinal Distribution Date for the related Companion Class(es); provided, however, that failure to satisfy if this Class has two or more Companion Classes and their Final Distribution Dates are not the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failuresame, the transaction contemplated Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (or later, as the case may be) Final Distribution Date.
(3) During each Interest Accrual Period, Lower Tier Interest LT5 will bear interest at an annual rate equal to the product of (x) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the Group 2 MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the X2 Class immediately preceding that Distribution Date, multiplied by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR12.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f4) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. 26.1 The obligations of the Seller hereunder are conditioned upon
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part a determination by the board of directors of Affinity Group Holding, Inc., the parent of the Minimum Transferor Amount pursuant Seller (“▇▇▇▇”), to clause the effect that the transactions contemplated by the Purchase Agreement comply with the terms of an indenture (bthe “Indenture”) dated as of April 2, 1997 pertaining to the 11% senior notes due 2007 issued by ▇▇▇▇, including, without limitation, that the terms of the definition Purchase Agreement are, in the aggregate, no less favorable to the Seller than those that could have been obtained in a comparable transaction on an arm’s-length basis from a person that is not an affiliate of Minimum Transferor Amountthe Seller.
(b) Transferor shall not exercise its right the Seller obtaining an opinion as to require reassignment to it or its designee the fairness, from a financial point of view, of the Receivables in any Removed Account or “Removed Account” (transactions contemplated by the Purchase Agreement from an independent financial advisor, as such term is defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementIndenture.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 the Seller receiving appraisals of the Pooling and Servicing Agreement or Section 2.8 Property confirming that the fair market value of the Transfer property is $52,310,000. If any of the foregoing conditions are unsatisfied, the Seller may declare the Purchase Agreement to be null and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) void by giving written notice thereof to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest Buyer on or before December 10, 2001.
26.2 At the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failureClosing, the transaction contemplated by Buyer and the Transaction Documents Seller shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, enter into a “triple net” lease with respect to the first such statement following the Closing Date, as each of the Closing Dateeleven parcels constituting the Property, such lease to be in such form as is agreed to between the Buyer and the Seller (the “Leases”). The Leases shall be at market rate rent, shall provide for a security and maintenance deposit in an amount to be negotiated (but estimated to be $100,000 to $150,000 per parcel) on and shall be for a term of fifteen years with options to renew for additional terms of five years each statement delivered pursuant to Section 5.3(a)at the then market rate rent.
(g26.3 Seller shall, at Seller’s expense, obtain the appraisals contemplated by Paragraph 26.1(c) Comenity Bank confirms, represents above. Seller agrees to make copies of such appraisals available to Buyer and warrants authorizes Buyer to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, use such appraisals in connection with the EU Due Diligence and Retention Rules Buyer’s financing contemplated by Paragraph 5.
26.4 The expression “Seller” as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, used in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation)Purchase Agreement means Affinity Group, by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor Inc. or any one or more of its Affiliates tosubsidiaries. ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE PROPERTY FOR BUYER’S INTENDED USE. WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THIS AGREEMENT MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF THE BUYER IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BE SIGNED BY TWO CORPORATE OFFICERS. AGRP HOLDING CORP. /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Vice President Telephone: (▇▇▇) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019▇▇▇-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).▇▇▇▇
Appears in 1 contract
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender’s Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Revolving Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the Maximum Revolving Loan Available Amount. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving Loan Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender’s Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed drawings under such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender’s Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 11:00 a.m. Houston time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer’s gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the Maximum Revolving Loan Available Amount (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Revolving Loans. Agent will pay to each Revolving Loan Lender such Lender’s Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it each Letter of Credit equal to the greater of (x) $500 or its designee (y) an amount equal to the Margin Percentage applicable from time to time with respect to LIBOR Borrowings multiplied by the daily average amount available for drawings under each Letter of Credit (and computed on the basis of the Receivables actual number of days elapsed in any Removed Account a year composed of 360 days), in each case for the period from and including the date of issuance of such Letter of Credit to and including the date of expiration or “Removed Account” (as defined termination thereof, such fee to be due and payable in advance on the Pooling and Servicing Agreement) pursuant to Section 2.7(a) date of the Transfer and Servicing Agreement or Section 2.9(a) issuance thereof. Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right product of such Lender’s Revolving Loan Commitment Percentage times the Transferor pursuant to Section 2.7(b) amount of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementsuch fees.
(cvi) Transferor The issuance by the applicable Issuer of each Letter of Credit shall, in addition to the conditions precedent set forth in Section 5 hereof, be subject to the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to Agent, and (B) that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Credit as Agent shall have reasonably requested and are not exercise its discount option pursuant to Section 2.10 inconsistent with the terms of this Agreement. In the Pooling event of a conflict between the terms of this Agreement and Servicing Agreement or Section 2.8 the terms of any Application, the Transfer and Servicing Agreementterms hereof shall control.
(dvii) So long as Regulation RR is in effect (x) Issuer will send to the extent that the sum of (i) the Seller’s Interest Borrower and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day each Lender, immediately upon issuance of any Monthly Period (eachLetter of Credit issued by Issuer or any amendment thereto, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest a true and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time correct copy of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements Letter of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer Credit or hedge any assets used to satisfy risk retention obligations under Regulation RRamendment.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Loan Agreement (Carrols Corp)
Additional Provisions. Set forth below in this SECTION 2 are additional terms of the Series 3 Bonds, as contemplated by clause (u) in the first paragraph of SECTION 1 of Article II of the Original Indenture.
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Anything herein to be considered part the contrary notwithstanding, any payment by the Company under the 1998 Indenture of the Minimum Transferor Amount pursuant to clause (b) principal of the definition securities which shall have been authenticated and delivered under the 1998 Indenture on the basis of Minimum Transferor Amountthe delivery to the 1998 Indenture Trustee of Series 3 Bonds (other than by the application of the proceeds of a payment in respect of such Series 3 Bonds) shall, to the extent thereof, be deemed to satisfy and discharge the obligation of the Company, if any, to make a payment of principal of such Series 3 Bonds which is then due. The Trustee shall be entitled to presume that the obligation of the Company to pay the principal of the Series 3 Bonds as the same shall become due and payable, whether at maturity, upon redemption or otherwise, shall have been fully satisfied and discharged unless and until it shall have received a written notice from the 1998 Indenture Trustee, signed by an authorized officer thereof, stating that the principal of specified Series 3 Bonds has become due and payable and has not been fully paid, and specifying the amount of funds required to make such payment.
(b) Transferor the Series 3 Bonds shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (have such other terms, and shall bear such restrictive legends, as defined are set forth in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) form of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.Series 3 Bond attached hereto as Exhibit A;
(c) Transferor if the Company shall make any deposit of money and/or Government Obligations with respect to any Series 3 Bonds, or any portion of the principal amount thereof, as contemplated by SECTION 1 of Article XV of the Original Indenture, then the Company shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
deliver a Treasurer's Certificate described in clause (d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on depositz) in the Excess Funding Account (first paragraph of said SECTION 1 unless the Company shall also deliver to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachTrustee, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount together with such that the sum of (other Treasurer's Certificate either:
i) an instrument wherein the Seller’s Interest Company, notwithstanding the satisfaction and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements discharge of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions indebtedness in respect of the Excess Collateral Amount relating such Series 3 Bonds, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee such additional sums of money, if any, or additional Government Obligations (meeting the requirements of said SECTION 1 of Article XV), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Government Obligations theretofore so deposited, to pay when due the principal of such Series 3 Bonds or portions thereof, all in accordance with and subject to the Series 2019-A notesprovisions of said SECTION 1; provided, (ii) Comenity Bank will not (and will not permit however, that such instrument may state that the Depositor or any obligation of its Affiliates to) allow the retained interest Company to make additional deposits as aforesaid shall be subject to any credit risk mitigationthe delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an Independent public accountant of nationally recognized standing showing the calculation thereof (which opinion shall be obtained at the expense of the Company); or
ii) an Opinion of Counsel to the effect that the Holders of such Series 3 Bonds, short position or other credit risk hedge portions of the principal amount thereof, will not recognize income, gain or to be sold if, loss for United States federal income tax purposes as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% result of the nominal value satisfaction and discharge of the securitized exposuresCompany's indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, except to at the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest same times and in the securitized exposures while the Series 2019-A Notes are outstanding, except same manner as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), if such satisfaction and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)discharge had not been effected.
Appears in 1 contract
Additional Provisions. 12.1 Grower agrees to communicate all applicable terms, conditions and restrictions on Seed whether under this Agreement, a Guide, an Update Notification or otherwise to all persons and entities possessing or taking an interest in Grower’s Seed and Grain therefrom.
12.2 Except as provided herein, notices to Grower or to Corteva shall be sent to the addresses specified in sections A, B or D above.
12.3 Grower agrees that should any information provided to ▇▇▇▇▇▇▇ herein change, Grower will promptly notify Corteva via section D above.
12.4 Nothing in the Agreement shall be construed as a grant or license from Corteva to the Grower for the use of any Corteva trademark. Grower is required to enter a separate trademark license from Corteva to use any Corteva trademark(s) including, but not limited to, those marks associated with trait, seed, technology or products.
12.5 Grower’s rights under the Agreement may not be transferred or assigned to any other person, entity or third-party without the prior written consent of Corteva.
12.6 The Agreement (aincluding documents and updates incorporated herein pursuant to Article 3 hereof) The Additional Minimum Transferor Amount constitutes the entire agreement between Grower and ▇▇▇▇▇▇▇ regarding the use of Purchased Seed, Enlist herbicide and Corteva Sourced Technology. All prior agreements and understandings between Grower and Corteva with respect to Purchased Seed, Enlist herbicide and Corteva Sourced Technology are hereby superseded.
12.7 If any provision in the Agreement is hereby specified as an additional amount determined to be considered part of void or unenforceable, the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountremaining provisions shall remain in full force and effect.
(b) Transferor 12.8 The failure of Corteva or any Third-Party Technology providers to exercise one or more of its rights under the Agreement on one or more occasions shall not be deemed a waiver to exercise its right to require reassignment to it such right(s) on one or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementsubsequent occasions.
12.9 This TUA may be executed and delivered by electronic signature (cincluding portable document format) Transferor shall not exercise its discount option pursuant to Section 2.10 by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ may rely on the receipt of such document so executed and delivered electronically as if the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementoriginal had been received.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest 12.10 Any action against ▇▇▇▇▇▇▇ and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever its Seed Sellers for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount terms of the Seller’s Interest as Agreement, including any warranties arising from it, must be commenced within one year after the cause of action accrues or be barred after such time. Where applicable, all required prerequisites to maintaining a legal action must be complied with prior to initiating the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)legal action.
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Technology Use Agreement
Additional Provisions. The Charterer will deliver to the Owner and each of the Investors copies of all cover notes and certificates of insurance and, if requested by the Owner copies of all binders and policies with respect to insurance carried on the Vessel. On or before the Delivery Date of the Vessel, and on each anniversary of the Delivery Date, and each time there is a reduction or material change in the insurance coverage carried on the Vessel, the Charterer will furnish to the Owner and each of the Investors a detailed report signed by independent marine insurance brokers (awho may be the insurance brokers regularly employed by the Charterer) appointed by the Charterer and reasonably acceptable to the Owner, describing the insurance policies then carried and maintained on the Vessel (including the names of the underwriters, the types of risk covered by such polices, the amount insured thereunder and the expiration date thereof) and stating that in the opinion of said insurance brokers such insurance is adequate and reasonable for protection of the Owner, is in compliance with the terms of Article 15 and is comparable with that carried by other responsible operators of similar drilling vessels. All policies shall include the following: (i) breach of warranty protection to the Owner Group, (ii) waiver of subrogation clause and (iii) at least 30 days prior written notice of cancellation or material modification. The Additional Minimum Transferor Amount is hereby specified insurance shall be primary, without right of contribution from any other insurance which may be carried by the Owner Group, and contain a waiver of set off of premiums against claims proceeds and provide for no recourse for premium payments by the Owner Group. ------------------------------------------------------------------------------ SCHEDULE D STIPULATED LOSS VALUE ------------------------------------------------------------------------------ SCHEDULE E PENDING LITIGATION Proceedings disclosed in Reading & Bates' Report on Form 10-Q dated September 30, 1995 filed wi▇▇ ▇▇e Securities & Exchange Commission. ------------------------------------------------------------------------------ SCHEDULE F Computation of Basic Hire Upgrade Adjustment Effective as an additional of each Upgrade Payment Date after the Delivery Date, the Basic Hire shall be adjusted for the amount to be considered part funded by the Owner in respect of the Minimum Transferor Amount pursuant to clause (b) Upgrade Program on such Upgrade Payment Dates using the U.S. Treasury note rate published in The Wall Street Journal for such notes maturing on or about the Expiration Date as adjusted and illustrated below, assuming a November 15, 1995 funding of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee first Upgrade Program installment payment and the Purchase Price under the MOA, the occurrence of the Receivables in any Removed Account or “Removed Account” second installment payment of the Upgrade Program on February 15, 1996 and the third installment payment of the Upgrade Program on Completion, assumed to be May 15, 1996. 11/15/95 Close (Index change as of 11/13/ WSJ - 19 bp) Hulme: Rental 1.171945 Implicit to Cap 10.▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Upgrade: Rental 1.1845983 Implicit to Cap 10.8726 Weighted 50:2.5: Rental 1.1725475 Implicit 10.6931 Feb portion of Upgrade: Rental 1.21079696 Implicit to Cap 11.0884 5/16/96 Close (at original 6/22 index rate) May portion of Upgrade: Rental 1.22053144 Implicit to Cap 11.0493 ------------------------------------------------------------------------------ Exhibit A to Charter FORM OF CERTIFICATE OF COMPLETION The following certificate (this "Certificate") is required for the occurrence of the Upgrade Completion (as defined in the Pooling Bareboat Charter (the "Charter") dated as of November 28, 1995 between Deep Sea Investors, L.L.C., a Delaware limited liability company (the "Owner"), and Servicing AgreementReading & Bates Drilling Co., an Oklahoma corporation (the "Charter▇▇"). Unless otherwise defined herein, all capitalized terms used herein have the meanings assigned to such terms in the Charter. The Charterer hereby certifies as follows:
(a) pursuant to Section 2.7(a) all environmental, governmental and other operating permits and approvals necessary, as of the Transfer and Servicing Agreement or Section 2.9(a) date hereof, for the continued operation of the Pooling Vessel have been obtained and Servicing Agreement more than once during are in full force and effect, there have been no defaults under any Monthly Period; it being understood such permits and approvals and the Charterer has no knowledge that this Section 8.7(bany such permits or approvals will be suspended or terminated prior to the scheduled expiration thereof;
(b) shall not limit any right of all insurance required by the Transferor pursuant to Section 2.7(b) of the Transfer Charter is in full force and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.effect;
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling Charter, the Charter Documents, the Drilling Contract and Servicing Agreement or Section 2.8 of the Transfer each Security Document is in full force and Servicing Agreement.effect;
(d) So long as Regulation RR no Event of Default or Default has occurred and is continuing;
(e) all work performed in effect connection with the construction of the Upgrade Program has been accepted by the Charterer without material exception;
(xf) to the extent that Vessel is capable of being operated for the sum purposes for which it has undergone the Upgrade Program without material modification thereto;
(g) the Vessel Upgrade has been completed in accordance with the plans, specifications and schedules set forth in the Upgrade Program, industry standards and accepted practices;
(h) the statements contained in the Certificate of Independent Engineer are true, complete and correct;
(i) the Seller’s Interest Charterer has paid all costs and expenses for the Upgrade Program other than for Upgrade Nonseverables, which have been paid by the Owner; and
(ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (ij) the Seller’s Interest Upgrade Nonseverables Cost is $______, which amount has been incurred and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche computed in accordance with the text of option (d) of Article 6(3) terms of the EU Securitization Regulation (as supplemented Charter and is properly reimburseable by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Owner thereunder.
Appears in 1 contract
Additional Provisions. (a) The Additional Minimum Transferor following sentence is hereby added at the end of Section 3.02 of the Trust Agreement: “Any Prepayment Premium Amount will be deemed allocated among the Lower Tier Regular Interests in the same manner that any such Prepayment Premium Amount is hereby specified as an additional amount to be considered part of allocated among the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amountrelated Companion Classes.”
(b) Transferor shall not exercise its right to require reassignment to it or its designee The following clause is hereby added at the end of Section 4.01 of the Receivables in Trust Agreement: “(without regard to any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementprovision for a permitted variance)”.
(c) Transferor shall not exercise its discount option pursuant to The first sentence of Section 2.10 4.03(d) of the Pooling Trust Agreement is hereby deleted in its entirety and Servicing Agreement or Section 2.8 replaced by the following: “The aggregate amount of principal, interest and Prepayment Premium Amount distributable on the Transfer and Servicing AgreementCertificates during any calendar month will be equal to the Certificate Distribution Amount for such calendar month.”
(d) So long as Regulation RR The following Section 4.03(j) is in effect (x) hereby added to the extent Trust Agreement: “In addition to interest distributable thereon as provided in this Section 4.03, on each Distribution Date, the Prepayment Premium Amount, if any, with respect to that the sum Distribution Date, shall be distributed on certain Classes of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certificates in the Excess Funding Account (to amounts and in the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest manner determined as specified under “Description of the last day Certificates – Distributions of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum – Allocation of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) Certain Prepayment Premiums” in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRProspectus Supplement.”
(e) For The following proviso is hereby added at the avoidance end of doubtSection 5.04(c) of the Trust Agreement: “; provided, however, that any Interest Reserve Amounts held in the Certificate Account pending distribution shall not be so withdrawn by the Trustee. In the case of each Mortgage Loan for which interest is calculated on an actual/360 basis, the related Interest Reserve Amounts received for each December Interest Accrual Period (other than in a year that immediately precedes a leap year) and January Interest Accrual Period shall be held in the Certificate Account for distribution on the first March Distribution Date that follows such Interest Accrual Period(s).” Lower Tier Interest Designation Companion Classes Original Class Balance Interest Rate Final Distribution Date LT1 AB, X $69,280,942 (1) (2) LT2 A1, X 90,000,000 (1) (2) LT3 A2, X 418,140,000 (1) (2) Class RL (3) (3)
(1) This Class will bear interest during each interest accrual period at an annual rate equal to the product of (A) a fraction, expressed as a percentage, the numerator of which is the aggregate amount of interest distributable on the MBS on the related Distribution Date, and the denominator of which is the notional principal balance of the X Class immediately preceding that Distribution Date, multiplied by (B) 12 (but in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(aless than 0%).
(g2) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to The Final Distribution Date for this Class will be the Issuer and same as the Indenture Trustee, solely Final Distribution Date for the benefit of each Applicable Investorrelated Companion Class(es); provided, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstandinghowever, that if this Class has two or more Companion Classes and their Final Distribution Dates are not the same, the Final Distribution Date for this Class will be the same as the Final Distribution Date for the related Companion Class having the latest (i) Comenity Bankor later, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option case may be) Final Distribution Date.
(d3) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank The RL Certificate will not (have a Class Balance and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)bear interest.
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Except when due to be considered part the gross negligence and/or misconduct of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it Landlord or its designee of the Receivables in any Removed Account agents, employees or “Removed Account” (contractors or except as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubtexpressly set forth below, in no event shall either Landlord be liable to Tenant for (a) any damage to the Premises, or (b) any loss, damage or injury to any property therein or thereon, or (c) any claims for the interruption of or loss to Tenant’s business or for any damages or consequential losses occasioned by bursting, rupture, leakage or overflow of any plumbing or other pipes or other similar cause in, above, upon or about the Premises or the Building, or (d) any interruption in any utility or other services to the Premises. If any public utility or governmental body shall require Landlord or Tenant to restrict the consumption of any utility or reduce any service to the Premises or the Building, Landlord and Tenant shall comply with such requirements, without any abatement or reduction of the Indenture Trustee Base Rent, Additional Rent or other sums payable by Tenant hereunder. In the Owner Trustee have event Landlord shall fail to comply with its obligations hereunder to provide or undertake any responsibility maintenance or repair of life safety systems, elevators, required lighting, HVAC systems or electricity in the Building as required by the terms of the Lease within two (2) business days of written notice to monitor compliance Landlord from Tenant of the necessity thereof, then, Tenant shall provide a second written notice to Landlord requesting that Landlord comply with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated its obligation hereunder in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will event Landlord has not commenced (and will not permit thereafter diligently pursues to completion) the Depositor remediation thereof within two (2) business days after receipt of such second notice, Tenant shall be entitled to take such action as may be commercially reasonable under the circumstance to correct such uncured default and Landlord shall reimburse Tenant for all costs reasonably incurred in the exercise of such rights, together with interest thereon at the Prime Rate from the date paid until the date reimbursed, within ten (10) days after written demand; provided that Tenant hereby waives any and all rights or any claims of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, offset as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)result thereof.
Appears in 1 contract
Sources: Deed of Lease (NCI, Inc.)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as Subject to the terms and conditions set forth herein, interest shall accrue on all unpaid Obligations during the Forbearance Period at an additional amount interest rate equal to be considered part the highest non-default interest rate for the related Type of Loan set forth in Section 6.1 of the Minimum Transferor Amount pursuant Credit Agreement. Additional interest shall accrue at a rate equal to clause (b) of the definition of Minimum Transferor Amountdifference between the applicable default rate for each Loan provided in the Credit Agreement and applicable interest rate set forth in the preceding sentence, which additional interest shall be due and payable on the Forbearance Termination Date. During the Forbearance Period, no Eurodollar Loan shall be made or continued with an Interest Period that ends later than September 30, 2000.
(b) Transferor shall not exercise its right Subject to require reassignment the terms and conditions set forth herein, the Lenders hereby waive any mandatory prepayment required to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) be made pursuant to Section 2.7(a6.5(c) of the Transfer and Servicing Credit Agreement relating to proceeds of new common equity investments into the Borrower of up to $1,600,000 in the aggregate made by existing shareholders, directors, or Section 2.9(a) senior management of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementBorrower substantially contemporaneously herewith.
(c) Transferor Subject to the terms and conditions set forth herein, during the Forbearance Period the Lenders shall not exercise its discount option pursuant increase the aggregate Revolving Credit Commitments by an aggregate of $2,000,000 to Section 2.10 a total of $27,000,000, such increase to be allocated among the Pooling and Servicing Agreement or Section 2.8 Lenders as set forth on Exhibit A attached hereto. On the Forbearance Termination Date, the Revolving Credit Commitments shall automatically revert back to an aggregate of $25,000,000 with allocations among the Transfer and Servicing AgreementLenders as was in effect immediately prior to the increase provided for herein.
(d) So long as Regulation RR is in effect (x) Subject to the extent that terms and conditions set forth herein, the sum of (i) Lenders shall defer their rights to exercise any warrants held by the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (Lenders relating to the extent Borrower that are exercisable on July 31, 2000 and on August 31, 2000 until the Excess Funding Account meets Forbearance Termination Date. If the requirements of Rule 5(f) of Regulation RR) Blai▇ ▇▇▇nsaction is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachconsummated on or prior to September 30, an “RR Measurement Date”)2000, the Transferor Lenders shall cause the Seller’s Interest to be increased to an amount surrender such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (warrants to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRBorrower for cancellation.
(e) For The Borrower shall deliver to the avoidance Administrative Agent an updated weekly cash forecast on Monday of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance witheach week, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewithif such day is not a Business Day, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretonext succeeding Business Day.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect Borrower shall deliver notice to the first such statement following Administrative Agent if it becomes reasonably likely that the Closing DateBlai▇ ▇▇▇nsaction will not close on or prior to September 30, as of 2000 and shall describe the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount circumstances relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount Blai▇ ▇▇▇nsaction at that is not less than 5% of the nominal value of the securitized exposures, except time. The Borrower shall promptly give notice to the extent permitted in accordance with Article 6(1) Administrative Agent of all material developments relating to the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Blai▇ ▇▇▇nsaction.
Appears in 1 contract
Additional Provisions. The following additional terms and provisions are hereby added to and are part of this Agreement. In the event of any inconsistency between the terms and provisions of this Section 10 and any other term or provision set forth in this Agreement, the terms and provisions of this Section 10 shall control.
a. The parties acknowledge that the holders of the Debt (not including the Previously Assigned Debt) are Valens Offshore SPV I, Ltd., Valens Offshore SPV II, Corp. and Valens U.S. SPV I, LLC (the “Holders”).
b. The Assignor has been designated by the Holders to act as their agent and is authorized to bind and contract for the assignment hereunder by the Holders.
c. By the Assignor and Assignee signing this Agreement, the Holders, the Assignor and the Assignee will act in conformance with this Agreement and will not independently act in any manner that conflicts with this Agreement.
d. The Debt purchased hereby constitutes all of the debt owed to the Holders by the Borrower; provided, however, that the Assignee hereby acknowledges and agrees that a portion of the undiscounted principal indebtedness arising under the notes referenced on Exhibit A hereto (not including the Debt) in the aggregate amount of $5,608,926.05 (the “Previously Assigned Debt”) has previously been assigned by Assignor to JDM Group, LLC and neither the Assignor nor any Holder makes any representation or warranty of any nature whatsoever with respect to such Previously Assigned Debt . Notwithstanding anything contained to the contrary in this Agreement, Assignee’s interest in the Debt (and the amount of Debt deemed purchased by the Assignee hereunder and with respect to which Assignee has any rights, claims and/or interests) shall at no time exceed Assignee’s Assignment Percentage of the Debt. For purposes hereof, (a) The Additional Minimum Transferor Amount the term “Assignment Percentage” means a percentage equal to a fraction the numerator of which is hereby specified as an additional amount to be considered part the cash payment of the Minimum Transferor Amount pursuant to clause Purchase Price actually received by Assignor and the denominator of which is the then unpaid portion of the Purchase Price and (b) the term “Purchase Price” means $350,000. Accordingly, as and when Assignor receives additional installments of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables Purchase Price in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche cash in accordance with the text of option (d) of Article 6(3) payment schedule set forth below, Assignee’s Assignment Percentage of the EU Securitization Regulation Debt shall increase. So long as the Assignee has not materially breached the terms of this Agreement (as supplemented by Article 8 of the CRR Delegated Regulation)it being acknowledged that a payment default, by holdingfor example, through the Transferor (its wholly-owned subsidiaryshall be deemed a material breach hereof), the right Holders are bound (subject to receive distributions receipt in respect cash of the Excess Collateral Amount relating applicable Purchase Price Payments) to assign the Series 2019-A notesfull Debt to Assignee so that the Holders cannot attempt to collect the Debt from the Borrower, (ii) Comenity Bank will not (and will not permit pledge the Depositor Debt to others, foreclose on the Debt or act in any of its Affiliates to) allow the retained interest way contrary to be subject to any credit risk mitigationthis Agreement, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest while this Agreement remains in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)effect.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Pervasip Corp)
Additional Provisions. The following provisions are hereby added to the Trust Agreement solely in connection with the Series of Certificates authorized by this Issue Supplement.
(a) Section 2.14(a) of the Trust Agreement is hereby deleted and replaced in its entirety by the following:
(a) The Additional Minimum Transferor Amount is Issuer hereby specified as an additional amount to be considered part declares its intent that the portion of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum Trust consisting of (i) the Seller’s Mortgage-Backed Securities and all proceeds thereof, (ii) the Certificate Account and all amounts held therein or credited thereto, and (iii) the Cash Deposit will constitute, and the affairs of such portion of the Trust will be conducted so as to qualify as, multiple REMICs pursuant to Section 860D of Subchapter M of Chapter 1 of the Code. The RL Class Certificate is hereby designated as the sole “residual interest” in the Lower Tier REMIC within the meaning of Section 860G(a)(2) of the Code, and the Lower Tier Regular Interests are hereby designated as “regular interests” in the Lower Tier REMIC within the meaning of Section 860G(a)(1) of the Code. The R Class Certificate is hereby designated as the sole “residual interest” in the Upper Tier REMIC within the meaning of Section 860G(a)(2) of the Code, and the remaining Classes of Certificates (other than the RL Class) are hereby designated as the “regular interests” in the Upper Tier REMIC within the meaning of Section 860G(a)(1) of the Code. The date designated as the “startup day” of each REMIC formed hereunder within the meaning of Section 860G(a)(9) of the Code will be the Settlement Date.”
(b) The following proviso is hereby inserted at the end of Section 3.02 of the Trust Agreement: “; provided, however, that (i) amounts to be applied as principal of Lower Tier Interest 49 shall be applied such that, after giving effect to such applications of principal, the Class Balance of Lower Tier Interest 49 shall be equal to 0.02% of the Class Balance of the VI Class, and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements be applied as principal of Rule 5(f) Lower Tier Interest 50 shall be applied such that, after giving effect to such applications of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”)principal, the Transferor Class Balance of Lower Tier Interest 50 shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 50.02% of the nominal value Class Balance of the securitized exposures with respect to IV Class.”
(c) The following subsection (j) is hereby added at the Series 2019-A notes, in the form end of a first loss tranche in accordance with the text of option (d) of Article 6(3) Section 4.03 of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).Trust Agreement:
Appears in 1 contract
Sources: Issue Supplement
Additional Provisions. a. All Tenant Improvements work shall be performed in compliance with Landlord's "Policies, Rules and Regulations for Construction Projects" delivered to Subtenant prior to execution of the Sublease. Subtenant shall permit Landlord and Sublandlord to observe and monitor all Tenant Improvements.
b. Sublandlord shall permit Subtenant and its agents, and Subtenant's Contractor, to enter the Premises prior to the Commencement Date without any obligation to pay Sublandlord Rent, to perform the Tenant Improvements and prepare the Premises for Subtenant's use and occupancy, including testing and installation of Subtenant's equipment. Any such permission shall be conditioned upon Subtenant's:
(a) The Additional Minimum Transferor Amount is hereby specified using a contractor from the list of contractors approved by Landlord and Sublandlord and depositing with Landlord and Sublandlord in advance of any work the Contractor's affidavit for the proposed work and as an additional amount reasonably necessary, from time to be considered part time, waivers of liens from the Minimum Transferor Amount pursuant to clause (b) Contractor and all subcontractors and suppliers of the definition of Minimum Transferor Amount.material; and
(b) Transferor shall not exercise furnishing Landlord and Sublandlord with the insurance required of Subtenant and its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) contractors pursuant to Section 2.7(a) 9 of the Transfer Sublease, and Servicing Agreement or causing all other parties entering the Project to perform the Tenant Improvements to provide Landlord and Sublandlord with the types, and amounts, of coverages required in Section 2.9(a) 9 of the Pooling Sublease.
c. Neither Landlord nor Sublandlord shall be liable in any way for any injury, loss or damage which may occur to any of Subtenant's property or installations in the Premises prior to the Commencement Date. Any entry and Servicing Agreement more than once during any Monthly Period; it being understood that occupation permitted under this EXHIBIT C shall be governed by Section 8.7(b) shall not limit any right 6 and all other terms of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachSublease. SUBTENANT SUBLANDLORD Proxim, an “RR Measurement Date”)Inc., the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provideda Applied Materials, that failure to satisfy the foregoing covenant shall not constitute Inc., a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).Delaware corporation Delaware corporation By________________________________ By________________________________ Name______________________________ Name______________________________ Title: ___________________________ Title: ___________________________ By________________________________ By________________________________ Name______________________________ Name______________________________ Title: ___________________________ Title: ___________________________
Appears in 1 contract
Sources: Sublease Agreement (Proxim Inc /De/)
Additional Provisions. The following subclauses (1) to (10) inclusive, shall apply as conditions to be observed by Contract Carriers and Mayne.
18.1. ▇▇▇▇▇ may investigate an excessive claims record of a Contract Carrier in respect of loss of or, damage to goods. A Contract Carrier whose claims record is excessive may be terminated by ▇▇▇▇▇.
18.2. If a provision of this Agreement is invalid, illegal or unenforceable it must, to the extent that it is invalid, illegal or unenforceable, be treated as severed from the Contract, without affecting the validity and enforceability of the remaining provisions.
18.3. The Contract Carrier is not entitled to be paid any fuel levy or surcharge by ▇▇▇▇▇.
18.4. This Contract is the whole contract between the parties concerning the subject matter. It replaces any prior contract, arrangement or understanding concerning the subject matter.
18.5. The Carrier warrants that no conflict of interest exists or is reasonably foreseeable in relation to the performance of its obligations under this Contract, at the date of signing this Contract. If, during the operation of this Contract, a conflict of interest arises, the Carrier will notify ▇▇▇▇▇ immediately in writing of that conflict.
18.6. Where a Contract Carrier commits misconduct, Mayne may elect to discontinue immediately to offer further Work to the Contract Carrier. An inquiry, if requested, will be held thereafter within one normal working day by ▇▇▇▇▇ and the Contract Carriers representative.
18.7. In the event the Contract Carrier delivers a Consignment to the wrong address (other than as a result of the Carrier being provided with the wrong address by ▇▇▇▇▇) the Carrier will be liable for the cost incurred by ▇▇▇▇▇ in making necessary alternative arrangements to have the Consignment delivered to the correct address and Mayne may deduct its costs from the Payment. Provided that Mayne will allow reasonable action to first enable the Carrier to correct the problem in a manner acceptable to the affected customer and Mayne.
18.8. Unless otherwise agreed between ▇▇▇▇▇ and the Contract Carrier, the Contract Carrier shall provide Mayne with 30 days’ notice of his intention to discontinue contracts of carriage with ▇▇▇▇▇. During this period ▇▇▇▇▇ shall have the right to travel a probationary learner (who shall be an employee of, or a Contract Carrier with, Mayne) with the Contract Carrier who is responsible for the effective transfer of Work knowledge and training. As a minimum, during the 30 days notice period the Contract Carrier will:
(a) The Additional Minimum Transferor Amount is hereby specified Have the probationary learner travel as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amounta passenger for at least one week.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of Travel with the Receivables in any Removed Account or “Removed Account” (probationary learner as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementa passenger for at least one week.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect Provide on the Closing Date, job training and constructive feedback to both the probationary learner and ▇▇▇▇▇ on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Banklearner’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)future training requirements.
Appears in 1 contract
Sources: Contract Agreement
Additional Provisions. Notwithstanding anything to the contrary contained herein, Borrower hereby agrees as follows:
(a) The Additional Minimum Transferor Amount is hereby specified as an additional amount Borrower shall cause Mortgage Borrower to: (i) pay all principal, interest and other sums required to be considered paid by Mortgage Borrower under and pursuant to the provisions of the Mortgage Loan Documents; (ii) diligently perform and observe all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed and observed; and (iii) promptly deliver to Lender a true and complete copy of any notice by Mortgage Lender to Mortgage Borrower or Guarantor of any default by Mortgage Borrower under the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor AmountMortgage Loan Documents.
(b) Transferor Borrower shall not exercise its right cause Mezzanine A Borrower to: (i) pay all principal, interest and other sums required to require reassignment be paid by Mezzanine A Borrower under and pursuant to it or its designee the provisions of the Receivables in any Removed Account or “Removed Account” Mezzanine A Loan Documents; (as defined in the Pooling ii) diligently perform and Servicing Agreement) pursuant to Section 2.7(a) observe all of the Transfer terms, covenants and Servicing Agreement or Section 2.9(a) conditions of the Pooling Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed and Servicing Agreement more than once during observed; and (iii) promptly deliver to Lender a true and complete copy of any Monthly Period; it being understood that this Section 8.7(b) shall not limit notice by Mezzanine A Lender to Mezzanine A Borrower or Guarantor of any right of default by Mezzanine A Borrower under the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementMortgage Loan Documents.
(c) Transferor Borrower agrees to notify Lender promptly upon receipt of written notice of the occurrence of any default under the Mortgage Loan Documents. If any default occurs under the Mortgage Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or any part of the Mortgage Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mortgage Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent Borrower or Mortgage Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not exercise its discount option pursuant impede, interfere with, hinder or delay, and shall not permit Mortgage Borrower to Section 2.10 impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default or asserted default under the Mortgage Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a default or asserted default under the Mortgage Loan. In the event that Lender makes any payment in respect of the Pooling and Servicing Agreement or Section 2.8 Mortgage Loan, Lender shall be subrogated to all of the Transfer rights of Mortgage Lender under the Mortgage Loan Documents against the Properties (or any portion thereof) and Servicing AgreementMortgage Borrower in addition to all other rights Lender may have under the Loan Documents or applicable law.
(d) So long Borrower agrees to notify Lender promptly upon receipt of written notice of the occurrence of any default under the Mezzanine A Loan Documents. If any default occurs under the Mezzanine A Loan Documents, Borrower agrees that Lender shall have the immediate right, without prior notice to Borrower, but shall be under no obligation to (A) pay all or any part of the Mezzanine A Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Mezzanine A Borrower as Regulation RR is may be appropriate, to cause all of the terms, covenants and conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed or observed thereunder to be promptly performed or observed, and (B) pay any other amounts and take any other action as Lender, in effect (x) its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, except, in each case, to the extent that Borrower or Mezzanine A Borrower is diligently pursuing remedies to cure such default in Lender’s reasonable discretion. Borrower shall not impede, interfere with, hinder or delay, and shall not permit Mezzanine A Borrower to impede, interfere with, hinder or delay, any effort or action on the sum part of (i) Lender to cure any default or asserted default under the SellerMezzanine A Loan, or to otherwise protect or preserve Lender’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) interests in the Excess Funding Account (to Loan and the extent Collateral following a default or asserted default under the Excess Funding Account meets Mezzanine A Loan. In the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as event that Lender makes any payment in respect of the last day Mezzanine A Loan, Lender shall be subrogated to all of the rights of Mezzanine A Lender under the Mezzanine A Loan Documents against the Mezzanine A Collateral (or any Monthly Period (each, an “RR Measurement Date”), portion thereof) and Mezzanine A Borrower in addition to all other rights Lender may have under the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to Loan Documents or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRapplicable law.
(e) For Borrower hereby grants to Lender and its designees the avoidance right to enter upon the Properties (or any portion thereof) (subject to the rights of doubtTenants) at any time following the occurrence and during the continuance of any default under the Mortgage Loan Documents, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest in the Collateral or to cure any such default. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of this Section (including communicating with Mortgage Lender with respect to any Mortgage Loan defaults), without consent from Borrower or Mortgage Borrower, but with prior reasonable notice. Lender shall have no event obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, shall either constitute a portion of the Indenture Trustee or Debt, shall be secured by the Owner Trustee have any responsibility Pledge Agreement and shall be due and payable to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoLender within five (5) Business Days following demand therefor.
(f) The Servicer will include Borrower hereby grants to Lender and its designees the amount right to enter upon the Properties (or any portion thereof) (subject to the rights of Tenants) at any time following the Selleroccurrence and during the continuance of any default under the Mezzanine A Loan Documents, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s Interest interest in the Collateral or to cure any such default. Lender may take such action as Lender deems reasonably necessary or desirable to carry out the intents and purposes of the most recent RR Measurement Date this Section (or, including communicating with Mezzanine A Lender with respect to any Mezzanine A Loan defaults), without consent from Borrower or Mezzanine A Borrower, but with prior reasonable notice. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the first costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such statement following payments to the Closing Datedate of payment to Lender, as shall constitute a portion of the Closing DateDebt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within five (5) on each statement delivered pursuant to Section 5.3(a)Business Days following demand therefor.
(g) Comenity Bank confirmsIf Lender shall receive a copy of any notice of default under the Mortgage Loan Documents sent by Mortgage Lender, represents and warrants such notice shall constitute full protection to and agrees with, and irrevocably and unconditionally undertakes Lender for any action taken or omitted to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investorbe taken by Lender, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notesgood faith, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposuresreliance thereon, except to the extent permitted such action or omission is deemed to be fraudulent or willful misconduct. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender’s exercise of its rights and remedies provided in this Section, except for Lender’s gross negligence or willful misconduct.
(h) If Lender shall receive a copy of any notice of default under the Mezzanine A Loan Documents sent by Mezzanine A Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon, except to the extent such action or omission is deemed to be fraudulent or willful misconduct. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender’s exercise of its rights and remedies provided in this Section, except for Lender’s gross negligence or willful misconduct.
(i) Lender shall have the right at any time to acquire all or any portion of the Mortgage Loan or any interest in any holder of, or participant in, the Mortgage Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mortgage Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mortgage Loan is in default in accordance with Article 6(1) the terms of the EU Securitization Regulation Mortgage Loan Agreement and (as supplemented by Article 12 ii) to accelerate the Mortgage Loan indebtedness, in accordance with the terms of the CRR Delegated RegulationMortgage Loan Agreement and (iii) to pursue all remedies against any obligor under the Mortgage Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mortgage Borrower or any other Person may have against Mortgage Lender relating to or arising out of the Mortgage Loan shall be the personal obligation of Mortgage Lender, and in no event shall Mortgage Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mortgage Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mortgage Loan, provided that Mortgage Borrower may seek specific performance of its contractual rights under the Mortgage Loan Documents.
(j) Lender shall have the right at any time to acquire all or any portion of the Mezzanine A Loan or any interest in any holder of, or participant in, the Mezzanine A Loan without notice or consent of Borrower or any other Borrower Party, in which event Lender shall have and may exercise all rights of Mezzanine A Lender thereunder (to the extent of its interest), including the right (i) to declare that the Mezzanine A Loan is in default in accordance with the terms of the Mezzanine A Loan Agreement and (ii) to accelerate the Mezzanine A Loan indebtedness, in accordance with the terms of the Mezzanine A Loan Agreement and (iii) to pursue all remedies against any obligor under the Mezzanine A Loan Documents. In addition, Borrower hereby expressly agrees that any claims, counterclaims, defenses, offsets, deductions or reductions of any kind which Mezzanine A Borrower or any other Person may have against Mezzanine A Lender relating to or arising out of the Mezzanine A Loan shall be the personal obligation of Mezzanine A Lender, and in no event shall Mezzanine A Borrower be entitled to bring, pursue or raise any such claims, counterclaims, defenses, offsets, deductions or reductions against Lender or any Affiliate of Lender or any other Person as the successor holder of the Mezzanine A Loan or any interest therein for any causes on or prior to the date such Lender or Person acquires such interest in the Mezzanine A Loan, provided that Mezzanine A Borrower may seek specific performance of its contractual rights under the Mezzanine A Loan Documents.
(k) Lender shall have the right to routinely consult with and advise Borrower’s management regarding the significant business activities and business and financial developments of Borrower. Lender shall have the right to cause consultation meetings to occur on a regular basis (no less frequently than quarterly) with Lender having the right to call special meetings at any reasonable times and upon reasonable advance notice.
(l) Borrower shall not cause or permit Mortgage Borrower to, without the prior written consent of Lender, (i) refinance the Mortgage Loan, (ii) modify or amend the Mortgage Loan Documents, (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019effect a deed-A Notes are outstanding, except as permitted under Article 6(1) in-lieu of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and Mortgage Loan or (iv) Comenity Bank will provide ongoing confirmation purchase the Mortgage Loan (or an interest therein).
(m) Borrower shall not cause or permit Mezzanine A Borrower to, without the prior written consent of Comenity Bank’s continued compliance with its obligations described in Lender, (i) and refinance the Mezzanine A Loan, (ii) above in modify or concurrently amend the Mezzanine A Loan Documents, (iii) effect an assignment-in-lieu of the Mezzanine A Loan or (iv) purchase the Mezzanine A Loan (or an interest therein)
(n) If at any time all or part of any payment made by Borrower under or with respect to this Agreement or the delivery other Loan Documents violated the terms of each statement delivered the Mortgage Loan Documents and/or the Mezzanine A Loan Documents and must be paid or released to Mortgage Lender and/or Mezzanine A Lender, as applicable, pursuant to Section 5.3(a)the Intercreditor Agreement, then the obligations of Borrower hereunder and the other Loan Documents shall, to the extent of such payment, be deemed to have continued in existence and been reinstated, notwithstanding such previous payment to Lender by Borrower, all as though such previous payment had never been made, provided that the amount turned over to Mortgage Lender and/or Mezzanine A Lender, as applicable, pursuant to the Intercreditor Agreement is applied to amounts due under the Mortgage Loan and/or the Mezzanine A Loan, as applicable.
Appears in 1 contract
Additional Provisions. AMUG agrees that ▇▇▇▇▇▇▇▇ Gold Corporation (a"AGC") shall be engaged as a key consultant (the "Operations Consultant") for the Project and the parties shall negotiate in good faith a consulting contract covering AGC's role as Operating Consultant of the Project taking into consideration, in the determination of remuneration and other terms, prevailing industry standards for such work; and the said consulting agreement shall be set out in a written agreement as the parties shall mutually approve. Pending the exercise by AMUG of the Option in full or termination of this Agreement, the Shareholders will grant to AMUG a proxy or proxies as necessary to enable the voting by AMUG of all of the AGCI Shares at general or special meetings of the shareholders, and agrees not to revoke such proxy or proxies. AMUG shall be entitled to appoint five directors to the board of directors of AGCI pending the exercise of the Option in full or the earlier termination of this Agreement or the failure of AMUG to complete any partial exercise of the Option described in subsection 1.2 herein. AMUG will have the first right of refusal to acquire up to a 50% interest in the rights to the remaining properties in ▇▇▇▇▇▇▇▇ Gold Limited Joint Venture Company if AGC does not pay its financial obligations to the Joint Venture Company in the times prescribed for such payments under the joint venture agreement. AMUG shall acquire the aforesaid 50% interest by issuing 600,000 shares of AMUG to AGC and assuming any balance of payments as required to satisfy the requirements of AGC under the Guizhou JV Agreement. The Additional Minimum Transferor Amount assignment of the rights to the properties and the financial obligations of each party shall be provided by separate agreement entered into as soon as is hereby specified as an additional amount practicable following the execution of this Agreement. Until the termination of this Agreement, the Shareholders jointly and severally agree that they will not grant to be considered any third party, nor seek, offer to sell, enter into any discussions or negotiations or otherwise enter into any transaction in furtherance of, any option, license, right or other entitlement to or interest in the Daguan Project. Should AMUG exercise the Option partially to acquire less than 100% of the AGCI Shares, then on termination of this Agreement or on notice by AMUG that it will not exercise any further part of the Minimum Transferor Amount pursuant Option, the Shareholders and AGCI agree to clause (b) enter into a shareholders' agreement setting forth the respective rights and obligations as among them and providing for, among other items typically included in a shareholders' agreement, the election of directors, pre-emptive rights on sale of shares, further dealings by AGCI with its assets, including the Daguan Project, and financial contributions to such further dealings. The parties agree to act in good faith in negotiating and executing such shareholders' agreement. If at any time AMUG fails to perform any obligation required to be performed hereunder, Shareholders must, before taking any action to terminate this Agreement, give 120 days prior notice of default to AMUG containing particulars of the definition obligation which AMUG has not performed and Shareholders shall be entitled to terminate this Agreement only if AMUG has not, within 30 days following delivery of Minimum Transferor Amount.
such notice of default, cured such default of commenced proceedings to cure such default by appropriate payment or performance (b) Transferor AMUG hereby agreeing that should it so commence to cure any default it will prosecute the same to completion without undue delay). If AMUG is at any time prevented or delayed in complying with any provision of this Agreement by reason of events beyond AMUG's reasonable control, excluding want of funds but including, the time limited for the performance by AMUG of its obligations hereunder shall not exercise its right to require reassignment to it or its designee be extended by a period of the Receivables time equal in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) length to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit period of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor such prevention or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)delay.
Appears in 1 contract
Sources: Share Purchase Agreement (American United Gold Corp)
Additional Provisions. The following additional provisions shall --------------------- apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall ----------- furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender's Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Revolving Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the Maximum Revolving Loan Available Amount. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving Loan Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender's Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed drawings under such Letter of Credit).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender's Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 11:00 a.m. Houston time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer's gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the ------------ --- Maximum Revolving Loan Available Amount (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Revolving Loans. Agent will pay to each Revolving Loan Lender such Lender's Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) above. ------------
(vi) The issuance by the applicable Issuer of each Letter of Credit shall, in addition to the definition conditions precedent set forth in Section 5 --------- hereof, be subject to the conditions precedent (A) that such Letter of Minimum Transferor AmountCredit shall be in such form and contain such terms as shall be reasonably satisfactory to Agent, and (B) that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Credit as Agent shall have reasonably requested and are not inconsistent with the terms of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Application, the terms hereof shall control.
(bvii) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) Issuer will send to the extent that the sum of (i) the Seller’s Interest Borrower and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day each Lender, immediately upon issuance of any Monthly Period (eachLetter of Credit issued by Issuer or any amendment thereto, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest a true and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time correct copy of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements Letter of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer Credit or hedge any assets used to satisfy risk retention obligations under Regulation RRamendment.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).
Appears in 1 contract
Sources: Loan Agreement (Carrols Corp)
Additional Provisions. Relating to Operation of Property, Payment of ------------------------------------------------------------------- Expenses. --------
(a) The Additional Minimum Transferor Amount Notwithstanding the provisions of subsection 7(a) to the contrary, it is hereby specified as an additional amount to agreed that the monthly installment of Estimated Annual Operating Expenses for the first full month shall be considered part of due and payable on or before the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor AmountPayment Date.
(b) Transferor Notwithstanding any provision of subsection 7(a) to the contrary, it is agreed that the following categories of expense shall not exercise its right to require reassignment to it or its designee be included in Annual Operating Expenses:
(i) Depreciation and amortization of the Receivables Building and the Property;
(ii) Salaries and benefits of executive officers of Landlord, of any affiliates of Landlord, or of any third party management personnel;
(iii) Debt service payments on any indebtedness applicable to the Building or the Property, including any mortgage debt or ground rents payable under any ground lease;
(iv) Fines and penalties incurred by Landlord, unless caused by Tenant;
(v) Tort claims and expenses of the investigation and defense thereof;
(vi) Amounts in excess of fair market rates in respect of any Removed Account transaction with, or “Removed Account” provision of any item or service by, Landlord or any affiliate of Landlord;
(as defined vii) Management fees in excess of five percent (5%) of the Pooling sum of Minimum Annual Rent and Servicing AgreementAdditional Rent;
(viii) Costs associated with withdrawal from a "multi-employer plan."
(ix) The cost of performing any improvements included within the work which Landlord is required to perform pursuant to Section 2.7(a30 or Section 32;
(x) The cost of acquisition of the Property or construction or renovation of the Building;
(xi) Costs associated with the refinancing of any of Landlord's debt;
(xii) Reserves for future expenditures or liabilities which would be incurred subsequent to the then current lease years;
(xiii) Any bad debt loss, rent loss, or reserves for bad debt or rent loss;
(xiv) Except as otherwise expressly provided in this lease, any and all legal and other fees, audit fees, inspection fees, appraisal fees, leasing commissions, advertising expenses, promotional costs, and other costs incurred in connection with the acquisition, development, leasing, and ownership of the Property;
(xv) Except to the extent that such fall within the scope of subsection 7(d)(iii) and except for the payment of Landlord's commercially reasonable deductible, not to exceed $5,000.00, the costs of repairing or restoring any portion of the Building and the Property damaged or destroyed by any casualty or peril, whether insured or uninsured, and costs of restoration following a taking by condemnation or eminent domain;
(xvi) Costs associated with the clean up, remediation, and removal of any hazardous wastes or substances and all other costs of causing the Property to comply with applicable Laws and Requirements except as otherwise expressly set forth in this lease;
(xvii) The additional premium charged for rent insurance for coverage in excess of twelve (12) months, unless such longer coverage period is then considered reasonable by industry standards;
(xviii) Administrative and overhead expenses (other than as part of "Tenant Services");
(xix) Costs associated with causing the Property to comply with applicable laws, codes, regulations or ordinances, to the extent the Property was not in compliance (or if not in compliance, was not properly "grandfathered" such that no alteration, modification, addition, improvement, replacement or other action was required or would thereafter be required in order to effect compliance) as of the date of substantial completion;
(xx) Costs associated with Landlord's warranty work (as provided in Section 63 below) and costs otherwise covered under warranties secured by Landlord or to be secured by Landlord under Section 63. Furthermore, the provisions of subsection 7(a) notwithstanding, annual operating costs shall not include the annual amortization (or any other measure of cost) of building improvements made by the Transfer and Servicing Agreement or Section 2.9(a) Landlord for the purpose of reducing operating expenses except to the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementextent such improvements actually reduce operating expenses.
(c) Transferor Anything in this Article 7 contained to the contrary notwithstanding, any and all expenditures incurred by Landlord and passed through to Tenant shall not exercise its discount option pursuant to Section 2.10 be incurred in a commercially reasonable manner consistent with the operation, maintenance and management of other first class office properties in the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementsuburban Philadelphia office market.
(d) So long In computing Tenant's obligations on account of Annual Operating Expenses, Tenant shall be entitled to a credit for the following:
(i) Net recoveries by Landlord from any third party as Regulation RR is in effect a result of any act, omission, default, or negligence of such third parties, or as a result of a breach or default by such parties under the provisions of applicable agreements which have caused Landlord to incur such costs and expenses; but only to the extent that such recoveries are of money which has been charged to Tenant as part of Annual Operating Expenses;
(xii) Recoveries by Landlord from insurance policies, to the extent that the sum of (i) the Seller’s Interest proceeds thereof reimburse Landlord for costs and (ii) amounts on deposit (excluding any investment earnings on deposit) expenses which were, in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachfact, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) included in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRTenant's Annual Operating Expenses.
(e) For Tenant shall have the avoidance of doubtright, in no event shall either at its sole cost and expense, to separately meter electric service to the Premises. Landlord shall, at its sole cost and expense, separately meter electric service to any other portions of the Indenture Trustee or Building which are leased for other than general office purposes. In the Owner Trustee have any responsibility event the Premises is not separately metered for electric service and in the event other space in the Building is separately metered for electric service, then for purposes of electric service, Tenant's Proportionate Share shall be deemed to monitor compliance with or, subject be the ratio of the approximate rentable square feet of the Premises to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge approximate rentable square feet of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever the area of the Building which is leased for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretogeneral office purposes and which has not previously been separately metered for electric service.
(f) The Servicer will include In subsection 7(a)(ii), in the amount of sixth (6th) line, the Seller’s Interest as of the most recent RR Measurement Date (or, phrase "60 days" is replaced with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)"1 year".
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to The following provision is hereby added at the Issuer and the Indenture Trustee, solely for the benefit end of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), subsection 7(a)(ii): "Tenant shall have the right to receive distributions in respect make any payment required pursuant to this subsection 7(a)(ii) "under protest" and, if Tenant makes payment of such sums under protest, such payment shall not be regarded as a voluntary payment, and there shall survive the Excess Collateral Amount relating right on the part of Tenant to institute suit for the recovery of such sum. Notwithstanding the foregoing to the Series 2019-A notescontrary, if such suit is not commenced within six (ii6) Comenity Bank will not (months after the payment under protest has been made, the cause of action shall be deemed wholly lost. If Tenant commences such suit within the required time period, and will not permit it shall be adjudged that there was no legal obligation on the Depositor part of Tenant to pay such sum or any part thereof, Tenant shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of its Affiliates tothis Lease."
(h) allow The following additional clause is added at the retained interest to be subject to any credit risk mitigationend of subsection 7(b)(i): ",and, short position or other credit risk hedge or to be sold ifin each such instance, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except only to the extent permitted in accordance with Article 6(1) of that the EU Securitization Regulation (as supplemented same would be payable if the Property were the only property owned by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Landlord."
Appears in 1 contract
Sources: Lease Agreement (Verticalnet Inc)
Additional Provisions. see attached Addendum Executed this 12th day of August, 1997 POWER INTEGRATIONS, INC. --------------------------------------- (aName of Borrower) The Additional Minimum Transferor Amount BY: /s/ ------------------------------------ IMPERIAL BANK (Authorized Signature and Title) BY: /s/ BY: /s/ ---------------------------------- ------------------------------------ Title (Authorized Signature and Title) *If none, insert "None" ADDENDUM TO SECURITY AND LOAN AGREEMENT ("SECURITY AND LOAN AGREEMENT") BETWEEN POWER INTEGRATIONS, INC. AND IMPERIAL BANK DATED AUGUST 12, 1997 This Addendum is hereby specified as an additional amount to be considered part made and entered into August 12, 1997, between Power Integrations, Inc. ("Borrower") and Imperial Bank ("Bank"). This Addendum amends and supplements the Security and Loan Agreement. In the event of any inconsistency between the terms herein and the terms of the Minimum Transferor Amount pursuant to clause (b) of Security and Loan Agreement, the definition of Minimum Transferor Amount.
(b) Transferor terms herein shall not exercise its right to require reassignment to it or its designee of in all cases govern and control. All capitalized terms herein, unless otherwise defined herein, shall have the Receivables in any Removed Account or “Removed Account” (as defined meaning set forth in the Pooling Security and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Loan Agreement.
(c) Transferor 1. Any commitment of Bank, pursuant to the terms of the Security and Loan Agreement, to make advances against Eligible Accounts and Inventory shall expire on August 11, 1998, subject to Bank's right to renew said commitment in its sole discretion. Any such renewal of the commitment shall not exercise its discount option pursuant to Section 2.10 be binding upon Bank unless it is in writing and signed by an officer of the Pooling Bank. All amounts outstanding under the Security and Servicing Loan Agreement or Section 2.8 of shall be due and payable in full on the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum earlier of (i) the Seller’s Interest occurrence of a default under the Security and Loan Agreement or this Addendum, or (ii) August 11, 1998.
2. Subject to the availability of the Borrowing Base and in reliance of the representations and warranties of Borrower set forth herein, at any time and from time to time from the date hereof through the business day immediately prior to the expiration date in Section 1 above, Bank shall issue for the account of Borrower such standby and commercial letters of credit ("Letters of Credit") as Borrower may request, which request shall be made by delivering to Bank a duly executed letter of credit application on Bank's standard form; provided, however, that the outstanding and undrawn amounts under all such Letters of Credit (i) shall not at any time exceed $8,000,000.00 and (ii) shall be deemed to constituted outstanding for the purpose of calculating availability under the Borrower Base. Unless Borrower shall have deposited with Bank cash collateral in an amount sufficient to cover all undrawn amounts on deposit (excluding any investment earnings on deposit) under each such Letter of Credit and Bank shall have agreed in writing, no Letter of Credit shall have an expiration date that is later than the Excess Funding Account (expiration date in Section 1 above. All Letter of Credit shall be in form and substance acceptable to Bank in its sole discretion and shall be subject to the extent terms and conditions of Bank's form application and letter of credit agreement. Borrower will pay any standard issuance and other fees that Bank notifies Borrower will be charged for issuing and processing Letters of Credit for Borrower.
3. Subject to the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as availability of the last Borrowing Base and in reliance on the representations and warranties of Borrower set forth herein, at any time and from time to time from the date hereof through the business day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (immediately prior to the extent expiration date in Section 1 above, Bank shall arrange the Excess Funding Account meets the requirements purchase by Borrower of Rule 5(fforeign exchange futures contracts ("Exchange Contracts") of Regulation RR) will as Borrower may request, which request shall be equal made by delivering to or greater than the Required Seller’s Interest Bank a duly executed exchange contract application on or before the following RR Measurement DateBank's standard form; provided, however, that failure to satisfy the foregoing covenant maximum aggregate notional contract amount under all such Exchange Contracts shall not constitute a breach of this Indenture Supplement if at the any time of such failureexceed $3,000,000.00 provided, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstandingfurther, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 510% of the nominal value maximum aggregate notional contract amount under all such Exchange Contracts shall be deemed to constituted outstanding for the purpose of calculating availability under the securitized exposures Borrowing base. Unless Borrower shall have deposited with respect Bank cash collateral in an amount sufficient to cover all undrawn amounts under each such Exchange Contract and Bank shall have agreed in writing, no Exchange Contract shall have a due date that is later than the Series 2019-A notes, expiration date in the Section 1 above. All Exchange Contacts shall be in form of a first loss tranche and substance acceptable to Bank in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (sole discretion and will not permit the Depositor or any of its Affiliates to) allow the retained interest to shall be subject to the terms and conditions of Bank's form exchange contract application. Borrower will pay any credit risk mitigation, short position or standard issuance and other credit risk hedge or to fees that Bank notifies Borrower will be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), charges for issuing and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).processing Exchange
Appears in 1 contract
Sources: Security and Loan Agreement (Power Integrations Inc)
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender’s Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the aggregate of the Commitments. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender’s Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed Reimbursement Obligations).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor Amount expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender’s Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 12:00 noon Houston, Texas time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which Agent notifies Borrower of the date and amount of any payment by any Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the aggregate of the Commitments (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Loans. Agent will pay to each Revolving Loan Lender such Lender’s Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it or its designee each Letter of Credit equal to the then current Margin Percentage for LIBOR Borrowings multiplied by the average undrawn amount of such Letter of Credit (and computed on the basis of the Receivables actual number of days elapsed in a year composed of 360 days), in each case for the period from and including the date of issuance of such Letter of Credit to and including the date of expiration or termination thereof, such fee to be due and payable in arrears on each Quarterly Date. Agent will pay to each Revolving Loan Lender, promptly after receiving any Removed Account or “Removed Account” payment in respect of letter of credit fees referred to in this clause (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) v), an amount equal to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time product of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include Lender’s Revolving Loan Commitment Percentage times the amount of the Seller’s Interest as such fees. In addition to and cumulative of the most recent RR Measurement Date above described fees, Borrower shall pay to Agent, for the account of the applicable Issuer, in advance on the date of the issuance of the applicable Letter of Credit, a fronting fee in an amount equal to 0.15% of the face amount of the applicable Letter of Credit (or, such fronting fee to be retained by the applicable Issuer for its own account). Borrower shall also pay each Issuer’s standard fees with respect to the first such statement following the Closing Dateamendment, as renewal or extension of the Closing Date) on each statement delivered pursuant to Section 5.3(a)any Letter of Credit or processing of drawings thereunder.
(gvi) Comenity Bank confirmsThe issuance by the applicable Issuer of each Letter of Credit shall, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes in addition to the Issuer and the Indenture Trusteeconditions precedent set forth in Section 5 hereof, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)Agent, and (ivB) Comenity Bank will provide ongoing confirmation that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Comenity Bank’s continued compliance with its obligations described in (i) Credit as Agent shall have reasonably requested and (ii) above in or concurrently are not inconsistent with the delivery terms of this Agreement. To the extent that any Application contains provisions granting liens or security interests not granted in the Loan Agreement no such additional provisions regarding any liens or security interests shall be effective. To the extent any Application contains events of default, waivers, and cure periods (or fails to provide cure periods as provided in the Loan Agreement) or any other provisions whatsoever which are more restrictive or otherwise inconsistent than those contained in the Loan Agreement, the provisions of the Loan Agreement shall control.
(vii) Issuer will send to Borrower and each statement delivered pursuant to Section 5.3(a)Lender, immediately upon issuance of any Letter of Credit issued by Issuer or any amendment thereto, a true and correct copy of such Letter of Credit or amendment.
Appears in 1 contract
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part During the term of the Minimum Transferor Amount pursuant Forbearance Period, the Borrower shall (i) cause its financial advisors to clause consult and review with the Agent's counsel's financial advisor, PricewaterhouseCoopers (b"PWC"), the Borrower's capital expenditure program, (ii) employ additional financial staff (either through external hiring or continuing the retention of professionals from Rothschild or the Borrower's outside auditors) for the purposes of preparing financial and cash flow projections, (iii) provide PWC reasonable access to all of the definition Borrower's books of Minimum Transferor Amountaccount, records and financial information, as well as reasonable access to the Borrower's financial officers and representatives for the purpose of evaluating the Borrower's business plan and financial restructuring plan, in a manner and scope satisfactory to the Agent, (iv) deliver to the Agent and the Lenders weekly flash reports (including rolling thirteen week cash flow projections) by no later than the third Business Day of the following week and (v) provide to the Agent and the Lenders on the last Business Day of each week a status report in form and substance reasonably acceptable to the Required Lenders regarding the sale process undertaken by the Borrower.
(b) Transferor The Borrower shall not exercise its right have received, and provided copies to require reassignment to it or its designee the Agent and the Lenders, the following items on the dates specified below: (i) by no later than September 29, 2000, a bona fide letter of intent for the purchase of the Receivables in any Removed Account Borrower's assets or “Removed Account” stock by a qualified prospective purchaser, (as defined in ii) by no later than November 15, 2000, a binding letter of intent from a qualified prospective purchaser for the Pooling and Servicing Agreement) pursuant to Section 2.7(a) sale of the Transfer and Servicing Agreement Borrower's assets or Section 2.9(a) stock, together with a written summary of the Pooling terms of such sale which summary of terms shall be in form and Servicing Agreement more substance reasonably acceptable to the Agent and the Required Lenders, and (iii) by no later than once during any Monthly Period; it being understood that this Section 8.7(b) December 15, 2000, the Borrower shall not limit any right of have executed a purchase and sale agreement having customary conditions in form and substance reasonably acceptable to the Transferor pursuant to Section 2.7(b) of Agent and the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing AgreementRequired Lenders.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 The Borrower, each of the Pooling Guarantors, the Agent and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent Lenders agree that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) Aggregate Revolving Commitment is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, hereby permanently and irrevocably and unconditionally undertakes reduced to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)$27,900,000.
Appears in 1 contract
Additional Provisions. a. Landlord and Tenant acknowledge and agree that (ai) The Additional Minimum Transferor Amount is hereby specified as an additional amount Landlord will not be providing the services and facilities described in Section 6 of the Lease to the Expansion Premises prior to completion of Landlord's Work therein unless Tenant requests in writing that such services and facilities be considered provided to all or part of the Minimum Transferor Amount pursuant Expansion Premises, in which event, subject to clause the last sentence of this Subparagraph 9(a) (bA) such request shall constitute Tenant's assumption of beneficial occupancy of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee applicable portion of the Receivables in any Removed Account or “Removed Account” Expansion Premises on the date such services and facilities commence, and (as defined in B) such services and facilities will, subject to the Pooling and Servicing Agreement) pursuant third to Section 2.7(a) last sentence of this Subparagraph 9(a), be provided to the applicable portion of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) Expansion Premises solely to the extent feasible taking into account the design of mechanical systems serving the Expansion Premises as soon after Landlord's receipt of Tenant's written notice as is reasonably practicable in the exercise of reasonable diligence by Landlord, and Tenant further agrees that such services and facilities may be temporarily interrupted or disrupted to the sum extent necessary in order for Landlord to complete Landlord's Work in situations where Tenant has elected to take occupancy of (i) all or a portion of the Seller’s Interest and Expansion Premises prior to the completion of Landlord's Work; (ii) amounts on deposit (excluding any investment earnings on deposit) in Tenant may, subject to compliance with applicable laws and ordinances and the Excess Funding Account (other terms and provisions of this Addendum, elect to the extent the Excess Funding Account meets the requirements take beneficial occupancy of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as all or part of the last day Expansion Premises prior to completion of Landlord's Work; (iii) any Monthly Period (each, an “RR Measurement Date”), breach of the Transferor provisions of this Addendum shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of the Lease and shall be subject in all respects to the provision of Sections 20 and 21 of the Lease; (iv) the provisions of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor Addendum shall not sellbe cited in any legal proceeding to support any contention by Tenant that it has the right, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms49 of the Lease, represents to defer its construction obligations under Sections 49 and warrants to and agrees with, and irrevocably and unconditionally undertakes to 7 of the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, Lease in connection with any future exercise by Tenant of its right of first refusal pursuant to the EU Due Diligence Lease; (v) this Addendum, and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes Tenant's use of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less Expansion Allowance other than 5% of the nominal value of the securitized exposures for costs associated with respect constructing leasehold improvements to the Series 2019-A notesExpansion Premises, shall not be cited in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented any legal proceedings by Article 8 of the CRR Delegated Regulation), Tenant to support any contention by holding, through the Transferor (its wholly-owned subsidiary), Tenant that it has the right to receive distributions in respect apply any future allowance provided for under Sections 47 and 49 of the Excess Collateral Amount relating Lease in connection with a future expansion of the Premises for purposes other than constructing leasehold improvements to such expansion area; and (vi) if Tenant uses the Expansion Allowance solely to pay the cost of leasehold improvements to the Series 2019-A notesExpansion Premises, (ii) Comenity Bank will such use shall not (and will not permit be cited in any legal proceeding to support any contention by Landlord that the Depositor or any of its Affiliates to) allow the retained interest allowance to be subject provided by Landlord to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% Tenant under Section 49 of the nominal value Lease must be used by Tenant solely to pay the cost of the securitized exposures, except leasehold improvements to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a).expansion
Appears in 1 contract
Sources: Lease Agreement (Filetek Inc)
Additional Provisions. 4.1 The Borrower hereby further agrees, confirms and undertakes as follows:
4.1.1 the Borrower shall indemnify the Bank and keep the Bank indemnified against all actions, proceedings, claims, demands, duties, penalties, taxes, losses, damages, actions, costs, charges and expenses (aincluding costs between attorney and client) The Additional Minimum Transferor Amount is hereby specified as an additional amount and other liabilities whatsoever which may be brought or made against or sustained or incurred by the Bank (and whether paid by the Bank or not) or which the Bank may become liable under or in respect of the BGs;
4.1.2 the Bank may in its sole and absolute discretion and without reference to be considered the Borrower and without the Bank being required to ascertain whether or not there was any breach on the part of the Minimum Transferor Amount pursuant to clause (b) Borrower of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right agreements / contracts underlying the BGs and without the Bank being required to require reassignment to it go into the validity thereof or its designee of the Receivables in otherwise and notwithstanding any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) directions to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated contrary given by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor Borrower or any other party whatsoever for person on the ground of a dispute as to the liability of the Borrower / the Bank or otherwise, admit or compromise and pay or submit to arbitration or dispute or resist any violation claim or demand made against the Bank under or in respect of Regulation RR or any rules or regulations promulgated such BGs, and the obligations of the Borrower contained in connection therewith or any similar provisions this Agreement shall continue to be available to the Bank in effect or the breach respect of any related term action or payment which the Bank may take or make;
4.1.3 The Borrower further agrees and undertakes that whenever called upon by the Bank to do so, the Borrower shall deposit and keep deposited with the Bank such sum or sums of this Indenture Supplementmoney as may be required to be held by the Bank as margin against all claims arising under the said deeds, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include until all the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect said deeds are discharged and returned to the first such statement following Bank. The Borrower shall also on demand from the Closing DateBank do, perform and execute and cause to be done performed and executed any act, deed, matter or thing which the Bank may require as of further security and for indemnifying it against the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, consequences in connection with the EU Due Diligence BGs.
4.1.4 the Borrower shall (unless otherwise agreed to by the Bank): (a) duly and Retention Rules as in effect punctually observe, perform and comply with all the covenants, obligations and conditions of all the agreements / contracts underlying the BGs including due payment and discharge of all its payment obligations under such contracts / agreements on the Closing Datedue dates; (b) not create or permit to subsist, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes encumbrance of any nature whatsoever over all or any part of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is underlying agreements / contracts or its rights thereunder; (c) not less than 5% amend or agree to amend or grant waiver of any of the nominal value provisions of the securitized exposures with respect underlying agreements / contracts;
4.1.5 the BGs will be issued by the Bank only as per the provisions of applicable Law;
4.1.6 the Bank shall issue BGs only in a format acceptable to the Series 2019-A notesBank;
4.1.7 in case of bid bond / ▇▇▇▇▇▇▇ money deposits / advance payment / retention money BGs, in stipulated under project exports or if the form of a first loss tranche in accordance with the text of option BGs are issued under any Export Promotion Capital Goods Scheme (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiaryEPCGS), the right Bank shall be entitled to receive distributions obtain counter guarantees from Export Credit Guarantee Corporation (“ECGC”) or similar authority, at the costs and expenses of the Borrower;
4.1.8 if for any reason, whatsoever the liability of the Bank extends beyond the Availability Period specified in the BGs or if the Bank is prevented by any action initiated by the Borrower or otherwise from making payment of part or whole of the guaranteed amounts to the beneficiary of the BGs, the Borrower shall also be liable to pay the commission for the period for which the Bank remains liable under the BGs and/or the period for which the payment of the guaranteed amount / discharge from the guaranteed obligations has been delayed;
4.1.9 the Borrower shall provide / deposit immediately on demand and without demur, additional acceptable security to the Bank and/or sufficient amounts by way of 100% cash margin on the outstanding amounts of the BGs, which in the Bank’s opinion are likely to be invoked due to non / inadequate fulfillment of obligation, in particular of performance undertaken under the BGs. The Borrower shall accept the Bank’s judgement on the likelihood of guarantee obligation being unfulfilled, as final and binding; and
4.1.10 in the event of the interest rate on the principal amount of the financial assistances guaranteed by the Bank increasing for any reason whatsoever beyond the percentage specified in the underlying agreements / contracts and consequentially the liability and obligation of the Bank under the BGs increasing, the Borrower shall indemnify and keep indemnified the Bank to the extent of additional interest liability paid in such form as may be determined by the Bank.
4.2 The Borrower further agrees that if any extension or renewal of any of the BGs is required, the same shall be renewed or extended by the Bank in its own discretion and in the event the Bank desires not to renew or extend any of the BGs, the Borrower agrees and undertakes to obtain, within 30 days from the expiry of original term of the BGs, return of the BGs in original, from the beneficiaries or obtain written confirmation from the beneficiaries that the BGs stand discharged, failing which the Borrower shall deposit with the Bank cash equivalent to the amount of BG and pay interest, commission, charges as applicable till the Bank is discharged from its obligation under the BG issued to the satisfaction of the Bank. The Bank shall be entitled to renew any BGs and extend the period of the Bank’s liability without reference to the Borrower if under the BGs the Bank has undertaken to extend such period to the beneficiary/ies.
4.3 The Borrower further agrees that the obligations herein provided shall be irrevocable and shall remain in full force until the Bank is fully discharged by the beneficiaries of all the liabilities under the BGs and until the Bank has got the discharge confirmed in writing from all the beneficiaries and got the BGs redeemed from them and all the dues and claims of Bank relating to the BGs have been paid or satisfied in full.
4.4 This Agreement shall extend to and cover any sum or sums of money payable by the Bank under the BGs and shall be binding on the Borrower until the Bank is fully discharged from all liabilities under the BGs and this Agreement shall not be considered as wholly or partly satisfied or exhausted by any payment from time to time made by Bank to the beneficiaries, as also by the Borrower to the Bank.
4.5 The Borrower further agrees that the giving or granting of time or any extension thereof to the Borrower or neglect, omission or forbearance on the part of the Bank in requiring or enforcing payment of any moneys due hereunder, or any other variations, modifications or amendments to any agreement between the Bank and the Borrower shall not in any way prejudice, limit, restrict or affect this Agreement.
4.6 The Borrower further agrees that the Bank shall at all times be entitled without reference and/or the consent of the Borrower, to vary and modify the terms of the said Limits which may include full margins as well as increase in pricing and the execution of the BGs by the Bank on behalf of the Borrower and this Agreement shall extend to and cover the expenses reflected by any additional liability arising on the Borrower in consequences of any such variation or modification. Further, the Bank shall be at liberty without in any way effecting the liability of the Borrower hereunder and for which the Borrower gives its consent to the Bank to vary the term or terms recorded in any of the BGs/guarantees or to release or discharge or to do any act or omission the legal consequences of which may be a discharge to the Borrower. This obligation of the Borrower shall be a continuing one and shall not be determinable or assignable by the Borrower at any time.
4.7 The Borrower further agrees and undertakes that until all the liabilities hereunder have been discharged in full, it shall not set off or claim or prove in competition with the Bank in respect of any payment hereunder or have the Excess Collateral Amount relating benefit of or share in any payment or composition in any guarantee or security now or hereinafter held by the Bank.
4.8 Notwithstanding anything to the Series 2019-A notescontrary contained in the Uniform Rules for Demand Guarantees of the International ▇▇▇▇▇▇▇▇ of Commerce (Publication No. 458), (ii) Comenity the Borrower agrees and undertakes, save and except specifically waived by the Bank will in any one or more of the said deeds, the Bank shall stand discharged of all its obligations under the said deeds, if the underlying contract/ agreement is amended, modified or varied and the Bank is not (and will not permit notified in writing by the Depositor Borrower within 20 days of the said amendment/modification/variation or time being given to the Borrower for performance of the contract/ agreement or for any forbearance of failure of the beneficiary to enforce any covenant of the contract/ agreement or composition or any of its Affiliates to) allow arrangement between the retained interest to be subject to creditor and debtor or any credit risk mitigation, short position other act or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% omission on the part of the nominal value Borrower or by any such matter or thing, whatsoever, which under the Indian Contract Act, 1872 would have the provision of relieving the securitized exposures, except Bank from the obligations under the said deeds. The Borrower(s) declares that the Agreement / Schedule was duly read and understood by him/ her/ it prior to the extent permitted in accordance with Article 6(1Affixing signatures(s) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)hereunder.
Appears in 1 contract
Additional Provisions. The following additional provisions shall apply to each Letter of Credit:
(ai) The Additional Minimum Transferor Amount is hereby specified Borrower shall give Agent notice requesting each issuance of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall furnish such additional information regarding such transaction as Agent may reasonably request. Upon receipt of such notice, Agent shall promptly notify each Revolving Loan Lender of the contents thereof and of such Lender’s Revolving Loan Commitment Percentage of the amount of such proposed Letter of Credit.
(ii) No Letter of Credit may be issued if after giving effect thereto the sum of (A) the aggregate outstanding principal amount of Loans plus (B) the aggregate Letter of Credit Liabilities would exceed the aggregate of the Commitments. On each day during the period commencing with the issuance of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Revolving Loan Lender shall be deemed to be utilized for all purposes hereof in an additional amount equal to such Lender’s Revolving Loan Commitment Percentage of the amount then available for drawings under such Letter of Credit (or any unreimbursed Reimbursement Obligations).
(iii) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment thereunder, Agent shall promptly notify Borrower and each Lender as to the amount to be considered part paid as a result of such demand and the payment date therefor. If at any time prior to the earlier of the Minimum Transferor Amount expiration date of a Letter of Credit or the Revolving Loan Termination Date any Issuer shall have made a payment to a beneficiary of a Letter of Credit in respect of a drawing under such Letter of Credit, each Revolving Loan Lender will pay to Agent immediately upon demand by such Issuer at any time during the period commencing after such payment until reimbursement thereof in full by Borrower, an amount equal to such Lender’s Revolving Loan Commitment Percentage of such payment, together with interest on such amount for each day from the date of demand for such payment (or, if such demand is made after 12:00 noon Houston, Texas time on such date, from the next succeeding Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for such period. To the extent that it is ultimately determined that the Borrower is relieved of its obligation to reimburse the applicable Issuer because of such Issuer’s gross negligence or willful misconduct in determining that documents received under any applicable Letter of Credit comply with the terms thereof, the applicable Issuer shall be obligated to refund to the paying Lenders all amounts paid to such Issuer to reimburse Issuer for the applicable drawing under such Letter of Credit.
(iv) Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse Agent, on the date on which the Agent notifies Borrower of the date and amount of any payment by the Issuer of any drawing under a Letter of Credit, for the amount paid by any Issuer upon such drawing, without presentment, demand, protest or other formalities of any kind, all of which are hereby waived. Such reimbursement may, subject to satisfaction of the conditions in Sections 5.1 and 5.2 hereof and to the aggregate of the Commitments (after adjustment in the same to reflect the elimination of the corresponding Letter of Credit Liability), be made by the borrowing of Loans. Agent will pay to each Revolving Loan Lender such Lender’s Revolving Loan Commitment Percentage of all amounts received from Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to Agent in respect of such Letter of Credit pursuant to clause (biii) of the definition of Minimum Transferor Amountabove.
(bv) Transferor shall not exercise its right Borrower will pay to require reassignment Agent at the Principal Office for the account of each Revolving Loan Lender a letter of credit fee with respect to it or its designee each Letter of Credit equal to the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) greater of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to $500 or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted the then current Margin Percentage multiplied by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
face amount of such Letter of Credit (e) For and computed on the avoidance basis of doubtthe actual number of days elapsed in a year composed of 360 days), in no event shall either each case for the period from and including the date of issuance of such Letter of Credit to and including the Indenture Trustee date of expiration or termination thereof, such fee to be due and payable in advance. Agent will pay to each Revolving Loan Lender, promptly after receiving any payment in respect of letter of credit fees referred to in this clause (v), an amount equal to the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge product of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include such Lender’s Revolving Loan Commitment Percentage times the amount of the Seller’s Interest as such fees. In addition to and cumulative of the most recent RR Measurement Date above described fees, Borrower shall pay to Agent, for the account of the applicable Issuer, in advance on the date of the issuance of the applicable Letter of Credit, a fronting fee in an amount equal to 0.10% of the face amount of the applicable Letter of Credit (or, such fronting fee to be retained by the applicable Issuer for its own account). The Borrower shall also pay each Issuer’s standard fees with respect to the first such statement following the Closing Dateamendment, as renewal or extension of the Closing Date) on each statement delivered pursuant to Section 5.3(a)any Letter of Credit or processing of drawings thereunder.
(gvi) Comenity Bank confirmsThe issuance by the applicable Issuer of each Letter of Credit shall, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes in addition to the Issuer and the Indenture Trusteeconditions precedent set forth in Section 5 hereof, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or the conditions precedent (A) that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)Agent, and (ivB) Comenity Bank will provide ongoing confirmation that Borrower shall have executed and delivered such Applications and other instruments and agreements relating to such Letter of Comenity Bank’s continued compliance with its obligations described in (i) Credit as Agent shall have reasonably requested and (ii) above in or concurrently are not inconsistent with the delivery terms of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Application, the terms hereof shall control.
(vii) Issuer will send to the Borrower and each statement delivered pursuant to Section 5.3(a)Lender, immediately upon issuance of any Letter of Credit issued by Issuer or any amendment thereto, a true and correct copy of such Letter of Credit or amendment.
Appears in 1 contract
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part Executive may not assign or delegate the performance of the Minimum Transferor Amount pursuant to clause (b) any of the definition of Minimum Transferor Amounthis rights and/or obligations under this Agreement. The Employer may assign its rights and/or obligations under this Agreement.
(b) Transferor shall not exercise its right to require reassignment to it or its designee This Agreement constitutes the entire agreement, representation and understanding of the Receivables parties hereto with respect to the subject matter hereof, and no amendment or modification hereof shall be valid or binding unless made in any Removed Account or “Removed Account” (as defined in writing and signed by the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreementparties hereto.
(c) Transferor shall All agreements between the parties related to the Executive’s employment by the Employer, whether oral or written and including but not exercise its discount option pursuant limited to Section 2.10 the Original Employment Agreement, are terminated and of the Pooling and Servicing Agreement no further force or Section 2.8 of the Transfer and Servicing Agreementeffect.
(d) So long as Regulation RR No waiver of any provision of this Agreement shall be valid unless the same is in effect (x) writing and signed by the party against whom it is sought to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day be enforced. No waiver of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to default or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time Agreement shall be deemed a continuing waiver or a waiver of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) any other than as permitted by Regulation RR, the Transferor shall not sell, transfer breach or hedge any assets used to satisfy risk retention obligations under Regulation RRdefault.
(e) For Executive acknowledges that prior to the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term execution of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoAgreement he had full opportunity to consult with his independent attorneys and advisors as he deemed appropriate and he fully understands the nature and scope of his rights and obligations hereunder.
(f) The Servicer will include Employer may withhold from any amounts payable under this Agreement such federal, state and local income and employment taxes as the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect Employer shall determine are required to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered be withheld pursuant to Section 5.3(a)any applicable law or regulation.
(g) Comenity Bank confirms, represents The parties intend that this Agreement and warrants to the payments and agrees with, and irrevocably and unconditionally undertakes other benefits provided hereunder be exempt from the requirements of Section 409A of the Internal Revenue Code (“Section 409A”) to the Issuer and maximum extent possible, whether pursuant to the Indenture Trusteeshort-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), solely for the benefit of each Applicable Investorinvoluntary separation pay plan exception described in Treasury Regulation Section 1.409A-1(b)(9)(iii), in connection or otherwise. To the extent Section 409A is applicable to this Agreement, the parties intend that this Agreement comply with the EU Due Diligence deferral, payout and Retention Rules as in other limitations and restrictions imposed under Section 409A. If either party believes, at any time, that any payments and other benefits under this is not so exempt or does not so comply, such party will promptly advise the other party and they each will negotiate reasonably to amend the terms of this Agreement such that it is exempt or complies with the most limited possible economic effect on the Closing Dateparties or to mitigate any additional tax or interest (or both) that may apply under Section 409A if exemption or compliance is not practicable. With respect to any payments and benefits under this Agreement to which Section 409A applies, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for all references in this Agreement to the purposes termination of the EU Due Diligence and Retention RulesExecutive’s employment are intended to mean the Executive’s “separation from service,” within the meaning of Section 409A(a)(2)(A)(i). Notwithstanding the foregoing, will retain on an ongoing basis a material net economic interest that is not less than 5% no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with Section 409A from the nominal value of the securitized exposures with respect Executive or any other individual to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor Employer or any of its Affiliates toaffiliates.
(h) allow the retained interest to be subject to If any credit risk mitigation, short position provision of this Agreement is invalid or other credit risk hedge or to be sold ifunenforceable in any jurisdiction such provision shall, as a resultto such jurisdiction, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except be ineffective to the extent permitted of such invalidity or unenforceability, but the foregoing shall not render invalid or unenforceable in accordance with Article 6(1) such jurisdiction the remainder of this Agreement or the EU Securitization Regulation (as supplemented by Article 12 remainder of such provision or affect the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option validity or method unenforceability of calculation any provision of its net economic interest this Agreement in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)any other jurisdiction.
Appears in 1 contract
Sources: Employment Agreement (Zynex Inc)
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, the parties agree that an Additional Termination Event will occur as provided in no event shall either Part 1(h)(ii) of the Indenture Trustee Schedule upon redemption or purchase of the Owner Trustee have any responsibility Series 2012-1 Class 2A4 Notes pursuant to monitor compliance Condition 5.5 (Optional Redemption for Tax and other Reasons) of the terms and conditions of the Notes, notwithstanding that the Party A Interim Exchange Amount and Party B Interim Exchange Amount are also payable upon such redemption;
(ii) An amount calculated in accordance with orSection 6(e) of the Agreement following designation of an Early Termination Date as a result of such Additional Termination Event will be paid by one party to the other, subject provided that, for the purposes of such calculation the obligations of the parties in respect of this Transaction due after the Early Termination Date shall be deemed to their obligations under be limited to the Transaction Documents, enforce compliance with, or be charged with knowledge payment of Regulation RR or any rules or regulations promulgated the Party A and Party B Floating Amounts on the basis of the principal amount outstanding of the Series 2012-1 Class 2A4 Notes before taking into account the redemption mentioned in connection therewith, nor shall it be liable sub-part (i) above and without regard to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or Series 2012-1 Class 2A4 Notes which have been issued pursuant to Condition 15 (Notes Issues) after the breach of any related term Effective Date of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.Transaction; and
(fiii) The Servicer will include To the extent that Party B makes only a partial payment of the Party B Final Exchange Amount (or fails to pay any Party B Final Exchange Amount) to Party A, Party A shall reduce the amount of the Seller’s Interest as of Party A Final Exchange Amount by the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees withsame percentage reduction, and irrevocably and unconditionally undertakes shall have no other obligation to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions Party B in respect of such payment or vice versa. For the Excess Collateral avoidance of doubt, the failure by Party A to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount relating under this Clause 2(iii) will not constitute an Event of Default under this Agreement and the failure by Party B to pay any amount exceeding the reduced amount in respect of such Final Exchange Amount under this Clause 2(iii) as a result of there being insufficient monies available for such purpose according to the Series 2019-A notesrelevant Issuer Priority of Payments as set out in the Cash Management Agreement or in the Issuer Deed of Charge, (ii) Comenity Bank as the case may be, will not (and will not permit the Depositor or any constitute an Event of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted Default under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)this Agreement.
Appears in 1 contract
Sources: Isda Master Agreement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified If, as an additional amount to be considered a result of any application or use by Landlord of all or any part of the Minimum Transferor Amount pursuant to clause (b) Letter of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachCredit, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as Letter of Credit shall be less than the LC Amount, then Tenant shall, within ten (10) days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement Letter of Credit for the full LC Amount) and any such additional letter(s) of credit (or replacement Letter of Credit for the full LC Amount) shall comply with all of the most recent RR Measurement Date (orprovisions of this Section 20.2, and if Tenant fails to comply with respect the foregoing, the same shall constitute an incurable default by Tenant under this Lease. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof, and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. If, at any time prior to the first such statement following the Closing LC Expiration Date, as the Letter of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that Credit is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche renewed or replaced in accordance with the text provisions of option (d) Section 20.2.2 above, or if Tenant fails to maintain the Letter of Article 6(3) of Credit in the EU Securitization Regulation (as supplemented by Article 8 of amount and in accordance with the CRR Delegated Regulation)terms set forth in this Section 20.2, by holding, through the Transferor (its wholly-owned subsidiary), then Landlord shall have the right to receive distributions present the Letter of Credit to the Bank in respect accordance with the terms of this Section 20.2 and the proceeds of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or Letter of Credit may be applied by Landlord against any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount Rent payable by Tenant under this Lease that is not less than 5% paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord’s other assets. Landlord agrees to pay to Tenant within thirty (30) days after the LC Expiration Date the amount of any proceeds of the nominal value Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under this Lease that was not paid when due and/or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant under this Lease; provided, however, that if prior to the LC Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the securitized exposures, except unused Letter of Credit proceeds until either all preference issues relating to the extent permitted payments this Lease have been resolved in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option such bankruptcy or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in reorganization case or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)such bankruptcy or reorganization case has been dismissed.
Appears in 1 contract
Sources: Lease (Aqua Metals, Inc.)
Additional Provisions. In addition to the other conditions precedent herein set forth, if any Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated by any combination satisfactory to the Issuing Bank or Swingline Lender of the following:
(a) The Additional Minimum Transferor Amount in the case of a Defaulting Lender, the LC Exposure and the Swingline Exposure of such Defaulting Lender is hereby specified reallocated, as an additional amount to be considered part outstanding and future Letters of Credit and Swingline Loans, to the Minimum Transferor Amount pursuant to Non-Defaulting Lenders as provided in clause (bi) of the definition of Minimum Transferor Amount.Section 2.19(b);
(b) Transferor shall not exercise its right to require reassignment to it in the case of a Defaulting Lender or its designee a Potential Defaulting Lender, without limiting the provisions of Section 2.19(a), the Borrower Cash Collateralizes the obligations of the Receivables Borrower in any Removed Account respect of such Letter of Credit or “Removed Account” Swingline Loan in an amount equal to the aggregate amount of the unreallocated obligations (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(acontingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Transfer Administrative Agent, the Issuing Bank and Servicing Agreement the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly PeriodPotential Defaulting Lender; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.and
(c) Transferor shall not exercise its discount option pursuant in the case of a Defaulting Lender or a Potential Defaulting Lender, then in the case of a proposed issuance of a Letter of Credit or making of a Swingline Loan, by an instrument or instruments in form and substance satisfactory to Section 2.10 the Administrative Agent, and to the Issuing Bank and the Swingline Lender, as the case may be, the Borrower agrees that the face amount of such requested Letter of Credit or the principal amount of such requested Swingline Loan will be reduced by an amount equal to the unreallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender or Potential Defaulting Lender would otherwise be liable, in which case the obligations of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is Non-Defaulting Lenders in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time respect of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements Letter of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer Credit or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with orSwingline Loan will, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Dateproviso below, as of the Closing Date) be on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing a pro rata basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) Commitments of the EU Securitization Regulation Non-Defaulting Lenders, and the pro rata payment provisions of Section 2.17(c) will be deemed adjusted to reflect this provision; provided that (as supplemented by Article 8 a) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure, total Swingline Exposure and total LC Exposure may not in any event exceed the CRR Delegated Regulation), by holding, through the Transferor (its whollyCommitment of such Non-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)Defaulting Lender, and (ivb) Comenity Bank neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will provide ongoing confirmation constitute a waiver or release of Comenity any claim the Borrower, the Administrative Agent, the Issuing Bank’s continued compliance with its obligations described in (i) and (ii) above in , the Swingline Lender or concurrently with the delivery of each statement delivered pursuant any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to Section 5.3(a)be a Non-Defaulting Lender.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Solar Capital Ltd.)
Additional Provisions. 4.1 AMUG agrees that ▇▇▇▇▇▇▇▇ Gold Corporation (a“AGC”) shall be engaged as a key consultant (the “Operations Consultant”) for the Project and the parties shall negotiate in good faith a consulting contract covering AGC’s role as Operating Consultant of the Project taking into consideration, in the determination of remuneration and other terms, prevailing industry standards for such work; and the said consulting agreement shall be set out in a written agreement as the parties shall mutually approve.
4.2 Pending the exercise by AMUG of the Option in full or termination of this Agreement, the Shareholders will grant to AMUG a proxy or proxies as necessary to enable the voting by AMUG of all of the AGCI Shares at general or special meetings of the shareholders, and agrees not to revoke such proxy or proxies.
4.3 AMUG shall be entitled to appoint five directors to the board of directors of AGCI pending the exercise of the Option in full or the earlier termination of this Agreement or the failure of AMUG to complete any partial exercise of the Option described in subsection 1.2 herein.
4.4 AMUG will have the first right of refusal to acquire up to a 50% interest in the rights to the remaining properties in ▇▇▇▇▇▇▇▇ Gold Limited Joint Venture Company if AGC does not pay its financial obligations to the Joint Venture Company in the times prescribed for such payments under the joint venture agreement. AMUG shall acquire the aforesaid 50% interest by issuing 600,000 shares of AMUG to AGC and assuming any balance of payments as required to satisfy the requirements of AGC under the Guizhou JV Agreement. The Additional Minimum Transferor Amount assignment of the rights to the properties and the financial obligations of each party shall be provided by separate agreement entered into as soon as is hereby specified as an additional amount practicable following the execution of this Agreement.
4.5 Until the termination of this Agreement, the Shareholders jointly and severally agree that they will not grant to be considered any third party, nor seek, offer to sell, enter into any discussions or negotiations or otherwise enter into any transaction in furtherance of, any option, license, right or other entitlement to or interest in the Daguan Project.
4.6 Should AMUG exercise the Option partially to acquire less than 100% of the AGCI Shares, then on termination of this Agreement or on notice by AMUG that it will not exercise any further part of the Minimum Transferor Amount pursuant Option, the Shareholders and AGCI agree to clause (b) enter into a shareholders’ agreement setting forth the respective rights and obligations as among them and providing for, among other items typically included in a shareholders’ agreement, the election of directors, pre- emptive rights on sale of shares, further dealings by AGCI with its assets, including the Daguan Project, and financial contributions to such further dealings. The parties agree to act in good faith in negotiating and executing such shareholders’ agreement.
4.7 If at any time AMUG fails to perform any obligation required to be performed hereunder, Shareholders must, before taking any action to terminate this Agreement, give 120 days prior notice of default to AMUG containing particulars of the definition of Minimum Transferor Amount.
(b) Transferor obligation which AMUG has not performed and Shareholders shall not exercise its right be entitled to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing terminate this Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day of any Monthly Period (eachonly if AMUG has not, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the within 30 days following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time delivery of such failurenotice of default, cured such default of commenced proceedings to cure such default by appropriate payment or performance (AMUG hereby agreeing that should it so commence to cure any default it will prosecute the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used same to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(acompletion without undue delay).
(g) Comenity Bank confirms4.8 If AMUG is at any time prevented or delayed in complying with any provision of this Agreement by reason of events beyond AMUG’s reasonable control, represents and warrants to and agrees withexcluding want of funds but including, and irrevocably and unconditionally undertakes the time limited for the performance by AMUG of its obligations hereunder shall be extended by a period of time equal in length to the Issuer and the Indenture Trustee, solely for the benefit period of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor such prevention or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)delay.
Appears in 1 contract
Sources: Share Purchase Agreement
Additional Provisions. (a) The Additional Minimum Transferor Amount is hereby specified as an additional amount to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(di) So long as Regulation RR is any of the First Priority Debt or any other amount in effect respect of or relating to the First Priority Debt remains outstanding (x) including any unpaid or unexpired Letter of Credit), to the extent that the sum following waivers are necessary to protect the rights and interests of the holders of the First Priority Facilities in the Collateral, the Second Lienholder shall not (i) the Seller’s Interest and (ii) amounts on deposit (excluding vote any investment earnings on deposit) claim as a secured creditor in the Excess Funding Account (any bankruptcy proceeding in a manner adverse to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as holders of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notesFirst Priority Facilities, (ii) Comenity Bank will not (and will not permit seek in respect of any part of the Depositor Collateral or proceeds thereof or any lien which may exist therein, any relief from or modification of its Affiliates tothe automatic stay as provided in Section 362 of the Bankruptcy Code or (iii) allow seek adequate protection as provided in Section 363 of the retained Bankruptcy Code. Holders of the Second Priority Facility shall similarly waive any rights during the pendency of any bankruptcy action to take any other action as a result of the security interest granted including rights to be object to (y) an election by the First Lienholder in any bankruptcy proceeding of the application of Section 1111(b) of the Bankruptcy Code or (z) a borrowing or grant of a security interest under Section 364 of the Bankruptcy Code by the Loan Parties, as debtors in possession. The holders of the First Priority Facilities hereby agree that subject to any credit risk mitigationthe provisions of this Section 11.19.5, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% the Holders of the nominal value Second Priority Facility may file a proper proof of claim or proof of debt in any judicial proceedings relative to the Loan Parties, their respective creditors or their property. In the event, however, that any holder of the securitized exposuresSecond Priority Facility or the Second Lienholder shall fail to file a proper claim or proof of debt in the form required in any judicial proceedings relative to the Loan Parties, except their respective creditors or property prior to 60 days before the expiration of the time to file such claims or proofs, the holders of the First agree that the Second Lienholder shall be permitted to file any appropriate claim or proof for and on behalf of the holders of the Second Priority Facility. In addition, the holders of the Second Priority Facility hereby waive any and all rights to have all or any portion of the Collateral marshalled upon any foreclosure of any liens of the Administrative Agent.
(ii) If any other provision of this Agreement or any provision of any other Loan Document shall be inconsistent with or contrary to any provision in this Section 11.19, the applicable provision in this Section 11.19 shall be controlling and supersede such inconsistent provision to the extent permitted necessary to give full effect to the provisions in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to this Section 5.3(a)11.19.
Appears in 1 contract
Sources: Credit Agreement (Orius Corp)
Additional Provisions. 32.1 The Sub-Recipient shall ensure that all insurance policies required under this Agreement (aexcept workers’ compensation insurance) The Additional Minimum Transferor Amount is hereby specified shall:
32.1.1 Name UNDP as an additional amount to be considered part insured party;
32.1.2 Include a waiver of subrogation of the Minimum Transferor Amount pursuant Sub-Recipient’s rights to clause the insurance carrier against UNDP; and
32.1.3 Provide that UNDP shall receive thirty (b30) days written notice from the insurers prior to any cancellation or change of coverage.
32.2 The Sub-Recipient shall, upon request, provide UNDP with satisfactory evidence of the definition of Minimum Transferor Amount.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of the Receivables in any Removed Account or “Removed Account” (as defined in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that insurance policies required under this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor 32.3 The Sub-Recipient understands that UNDP is responsible for monitoring and evaluating SR Activities and the Project as a whole. The Sub-Recipient agrees to cooperate with UNDP in such monitoring and evaluation and to perform every obligation set forth in a monitoring and evaluation plan to be agreed to by the Parties.
32.4 The Sub-Recipient further understands that UNDP may conduct an independent evaluation of the Project, which may include SR Activities and which will focus on results, transparency, and substantive accountability. The Sub-Recipient agrees to cooperate fully in the execution of such evaluation.
32.5 The Sub-Recipient shall not exercise its discount option pursuant to Section 2.10 cause or permit any lien, attachment or other encumbrance against any monies due, or which may become due, for any work done or materials furnished under this Agreement, or by reason of any other claim or demand against the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing AgreementSub-Recipient.
(d) So long as Regulation RR is in effect (x) 32.6 The Sub-Recipient agrees to the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as of the last day notify UNDP immediately upon receipt of any Monthly Period donor funds targeted towards any similar purposes and objectives as SR Activities, and to provide UNDP all details thereof.
32.7 Except as provided in Article 28 (each, an “RR Measurement Date”)Sub-Sub-Recipients) above, the Transferor shall cause Sub-Recipient may not assign, transfer, pledge or make any other disposition of this Agreement, of any part of this Agreement, or of any of its rights, claims or obligations under this Agreement, except with the Seller’s Interest prior written authorization of UNDP. Any such unauthorized assignment, transfer, pledge or other disposition, or any attempt to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provideddo so, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than binding on UNDP. Except as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019approved Sub-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary)Recipients, the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019Sub-A notes, (ii) Comenity Bank will Recipient shall not (and will not permit the Depositor or delegate any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposuresobligations under this Agreement, except with the prior written consent of UNDP. Any such unauthorized delegation, or attempt to do so, shall not be binding on UNDP.
32.8 This Agreement and any annexes and attachments hereto set out all the conditions, understandings, and agreements between the Parties pertaining to the extent permitted in accordance with Article 6(1) subject matter of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation)this Agreement and supersedes all prior agreements, (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstandingunderstandings, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation)negotiations, and (iv) Comenity Bank will provide ongoing confirmation discussions, whether oral or written. 1 Special Conditions are included if there is a need to amend the Standard Terms and Conditions of Comenity Bank’s continued compliance with its obligations described in (i) this Agreement. Special Conditions must also be included when assets procured/managed by a Former Principal Recipient are transferred to the Project. If neither of these situations applies to your case, please delete Appendix A and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)any references thereto.
Appears in 1 contract
Sources: Global Fund Sub Recipient Agreement
Additional Provisions. Insofar as the following provisions conflict with any other provisions of the Lease, the following shall control:
(a) The Additional Minimum Transferor Amount submission of this document for examination does not constitute an option or offer to lease space at the Property. This document shall have no binding effect on the parties unless executed by the Landlord and the Tenant and a fully executed copy is hereby specified as an additional amount delivered to be considered part of the Minimum Transferor Amount pursuant to clause (b) of the definition of Minimum Transferor AmountTenant.
(b) Transferor shall not exercise its right to require reassignment to it or its designee of Rent: Date Monthly Annual ---- ------- ------ 9/1/98-8/31/03 $8,216.00 $98,592.00 9/1/03-8/31/08 $10,270.00 $123,240.00 It is anticipated that the Receivables in any Removed Account or “Removed Account” (as defined actual rent start date will be August 15, 1998, so that the first two week period will be outside the term with rent for that period pro-rated in the Pooling and Servicing Agreement) pursuant to Section 2.7(a) amount of the Transfer and Servicing Agreement or Section 2.9(a) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement$4,108.00.
(c) Transferor Tenant is hereby granted immediate access to the premises for a period beginning July 1, 1998 through August 14, 1998, to perform certain acts of due diligence in order to determine suitability of demised premises for tenant's occupancy. Immediately upon completion of said due diligence, tenant is to so notify landlord in writing so that lease shall either be voided or come into full force and effect not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreementlater than August 15, 1998.
(d) So long The provisions of Paragraph 6 notwithstanding, Tenant will be permitted by Landlord, to make certain interior changes to building required by tenant's occupancy up to and including construction of an enclosed "peril proof" area within the building. Tenant expressly agrees to remove or cause to be removed this specific area as Regulation RR is well as the other items specifically designated in effect (x) to paragraph 6 upon request by landlord at the extent that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) is less than the Required Seller’s Interest as end of the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor lease term and such removal shall cause the Seller’s Interest to be increased to an amount such that the sum of (i) the Seller’s Interest and (ii) amounts on deposit (excluding any investment earnings on deposit) in the Excess Funding Account (to the extent the Excess Funding Account meets the requirements of Rule 5(f) of Regulation RR) will be equal to or greater than the Required Seller’s Interest on or before the following RR Measurement Date; provided, that failure to satisfy the foregoing covenant shall not constitute a breach of this Indenture Supplement if at the time of such failure, the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RRtenant's sole expense.
(e) For the avoidance Landlord hereby agrees to provide tenant a cosmetic improvement allowance of doubt, in no event shall either $12,000.00 to be paid upon submission of the Indenture Trustee or the Owner Trustee have any responsibility to monitor compliance with or, subject to their obligations under the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or theretoproperly approved contractor invoices.
(f) The Servicer will include the amount Landlord hereby grants to Tenant renewal options of two five year terms each at rental rates to be negotiated not less than 6 months prior to expiration of the Seller’s Interest as of then current term. Rental rates are to be determined by the most recent RR Measurement Date (or, with respect to then prevailing rates for comparable space in the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a)same market area at that time.
(g) Comenity Bank confirmsLandlord hereby grants to Tenant a right of first refusal to purchase the building. However, represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules as in effect on the Closing Date, on an ongoing basis, so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for the purposes of the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is such right shall not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, apply in the form event of sale or otherwise transfer to heirs or family members or entities in which family members have a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)major interest.
Appears in 1 contract
Sources: Lease (Airgate Wireless Inc)
Additional Provisions. Renewal Option. Tenant shall have the right to extend the Term (athe "Renewal Option") The Additional Minimum Transferor Amount is hereby specified as an for two (2) additional amount to be considered part periods of five (5) years each commencing on the day following the Termination Date of the Minimum Transferor Amount pursuant to clause then expiring Term (b) each a "Renewal Term"), if: Landlord receives notice of exercise of the definition of Minimum Transferor Amount.
Renewal Option (b"Initial Renewal Notice") Transferor shall not exercise its right less than twelve (12) full calendar months prior to require reassignment to it or its designee the expiration of the Receivables then expiring Term and not more than eighteen (18) full calendar months prior to the expiration of the then expiring Term; and Tenant is not in default under the Lease beyond any Removed Account applicable cure periods at the time that Tenant delivers its Renewal Notice or “Removed Account” at the time Tenant delivers its Binding Notice (as defined in the Pooling hereinafter defined); and Servicing Agreement) pursuant to Section 2.7(a) Not more than 50% of the Transfer Premises (as expanded, if applicable) is sublet (except in connection with a Permitted Transfer) at the time that Tenant delivers its Renewal Notice or at the time Tenant delivers its Binding Notice; and Servicing Agreement or Section 2.9(aThe Lease has not been assigned (except in connection with a Permitted Transfer) of the Pooling and Servicing Agreement more than once during any Monthly Period; it being understood that this Section 8.7(b) shall not limit any right of the Transferor pursuant to Section 2.7(b) of the Transfer and Servicing Agreement or Section 2.9(b) of the Pooling and Servicing Agreement.
(c) Transferor shall not exercise its discount option pursuant to Section 2.10 of the Pooling and Servicing Agreement or Section 2.8 of the Transfer and Servicing Agreement.
(d) So long as Regulation RR is in effect (x) prior to the extent date that Tenant delivers its Renewal Notice or prior to the sum date Tenant delivers its Binding Notice; and Tenant executes and returns the Renewal Amendment (hereinafter defined) within fifteen (15) days after its submission to Tenant. The initial Base Rent rate per rentable square foot for the Premises during the Renewal Term shall equal the greater of (i) the Seller’s Interest Base Rent value payable during the final year of the then expiring Term and (ii) amounts the Prevailing Market (hereinafter defined) rate per rentable square foot for the Premises. Tenant shall pay Additional Rent for the Premises during each Renewal Term in accordance with Article IV of the Lease. Within thirty (30) days after receipt of Tenant's Renewal Notice, Landlord shall advise Tenant of the applicable Base Rent rate for the Premises for the applicable Renewal Term. Tenant, within fifteen (15) days after the date on deposit which Landlord advises Tenant of the applicable Base Rent rate for the applicable Renewal Term, shall either (excluding any investment earnings i) give Landlord final binding written notice ("Binding Notice") of Tenant's exercise of its option, or (ii) if Tenant disagrees with Landlord's determination, provide Landlord with written notice of rejection (the "Rejection Notice"). If Tenant fails to provide Landlord with either a Binding Notice or Rejection Notice within such fifteen (15) day period, Tenant's Renewal Option shall be null and void and of no further force and effect. If Tenant provides Landlord with a Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment upon the terms and conditions set forth herein. If Tenant provides Landlord with a Rejection Notice, Landlord and Tenant shall work together in good faith to agree upon the Prevailing Market Base Rent rate for the Premises during the Renewal Term. Upon agreement Tenant shall provide Landlord with Binding Notice and Landlord and Tenant shall enter into the Renewal Amendment in accordance with the terms and conditions hereof. Notwithstanding the foregoing, if Landlord and Tenant are unable to agree upon the Prevailing Market Base Rent rate for the Premises within thirty (30) days after the date on depositwhich Tenant provides Landlord with a Rejection Notice, Tenant, by written notice to Landlord (the "Arbitration Notice") within five (5) days after the expiration of such thirty (30) day period, shall have the right to have the Prevailing Market rate determined in accordance with the Excess Funding Account following procedures. If Tenant fails to exercise its right to arbitrate, the Renewal Option shall be deemed to be null and void and of no further force and effect. If Tenant provides Landlord with an Arbitration Notice, Landlord and Tenant, within ten (10) days after the date of the Arbitration Notice, shall each simultaneously submit to the extent other, in a sealed envelope, its good faith estimate of the Excess Funding Account meets Prevailing Market rate (collectively referred to as the requirements "Estimates"). If the higher of Rule 5(fsuch Estimates is not more than one hundred five percent (105%) of Regulation RR) is less than the Required Seller’s Interest as lower of such Estimates, then Prevailing Market rate shall be the last day of any Monthly Period (each, an “RR Measurement Date”), the Transferor shall cause the Seller’s Interest to be increased to an amount such that the sum greater of (i) the Seller’s Interest average of the two Estimates and (ii) amounts on deposit the Base Rent rate payable during the final year of the initial Term. If the Prevailing Market rate is not resolved by the exchange of Estimates, Landlord and Tenant, within seven (excluding any investment earnings on deposit7) days after the exchange of Estimates, shall each select a appraiser to determine which of the two Estimates most closely reflects the Prevailing Market rate for the Premises. Each appraiser so selected shall be certified as an MAI appraiser or as an ASA appraiser and shall have had at least five (5) years experience within the previous ten (10) years as a real estate appraiser working in the Excess Funding Account San Mateo vicinity with working knowledge of current rental rates and practices. For purposes of this Lease, an "MAI" appraiser means an individual who holds an MAI designation conferred by, and is an independent member of, the American Institute of Real Estate Appraisers (or its successor organization, or in the event there is no successor organization, the organization and designation most similar), and an "ASA" appraiser means an individual who holds the Senior Member designation conferred by, and is an independent member of, the American Society of Appraisers (or its successor organization, or, in the event there is no successor organization, the organization and designation most similar). Upon selection, Landlord's and Tenant's appraisers shall work together in good faith to agree upon which of the two Estimates most closely reflects the Prevailing Market rate for the Premises. The Estimate chosen by such appraisers shall be binding on both Landlord and Tenant as the Base Rent rate for the Premises; provided such Estimate is greater than the Base Rent rate payable during the final year of the initial Term. If either Landlord or Tenant fails to appoint an appraiser within the seven day period referred to above, the appraiser appointed by the other party shall be the sole appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two Estimates most closely reflects the Prevailing Market rate within the twenty (20) days after their appointment, then, within ten (10) days after the expiration of such twenty (20) day period, the two (2) appraisers shall select a third appraiser meeting the aforementioned criteria. Once the third appraiser has been selected as provided for above, then, as soon thereafter as practicable but in any case within fourteen (14) days, the appraiser shall make his determination of which of the two Estimates most closely reflects the Prevailing Market rate and, provided such Estimate is greater than the Base Rent rate payable during the final year of the initial Term, such Estimate shall be binding on both Landlord and Tenant as the Base Rent rate for the Premises. If the arbitrator believes that expert advice would materially assist him, he may retain one or more qualified persons, provided they have had no dealings with Landlord or Tenant within the immediately preceding twelve (12) month period, to provide such expert advice. The parties shall share equally in the costs of the arbitrator and of any experts reasonably retained by the arbitrator. Any fees of any appraiser, counsel or experts engaged directly by Landlord or Tenant, however, shall be borne by the party retaining such appraiser, counsel or expert. In the event that the Prevailing Market rate has not been determined by the commencement date of the Renewal Term, Tenant shall pay Base Rent upon the terms and conditions in effect for the Premises until such time as the Prevailing Market rate has been determined. Upon such determination, the Base Rent for the Premises shall be retroactively adjusted, if necessary, to the commencement of the Renewal Term. If such adjustment results in an underpayment of Base Rent by Tenant, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after the determination thereof. If such adjustment results in an overpayment of Base Rent by Tenant, Landlord shall credit such overpayment against the next installment of Base Rent due under the Lease and, to the extent necessary, any subsequent installments until the Excess Funding Account meets entire amount of such overpayment has been credited against Base Rent. If Tenant is entitled to and properly exercises its Renewal Option, Landlord shall prepare an amendment (the requirements "Renewal Amendment") to reflect changes in the Base Rent, Term, Termination Date and other appropriate terms. The Renewal Amendment shall be: sent to Tenant within a reasonable time after receipt of Rule 5(f) the Binding Notice; and executed by Tenant and returned to Landlord in accordance with paragraph I.A.5 above. An otherwise valid exercise of Regulation RR) will the Renewal Option shall, at Landlord's option, be equal to fully effective whether or greater than not the Required Seller’s Interest Renewal Amendment is executed. For purpose hereof, "Prevailing Market" shall mean the arms length fair market annual rental rate per rentable square foot under renewal leases and amendments entered into on or before about the following RR Measurement Date; provideddate on which the Prevailing Market is being determined hereunder for space comparable to the Premises in the Buildings and office buildings comparable to the Buildings in the greater San Mateo vicinity for tenants of comparable financial strength and size. The determination of Prevailing Market shall take into account any material economic differences between the terms of this Lease and any comparison lease, that failure to satisfy such as rent abatements, construction costs and other concessions and the foregoing covenant manner, if any, in which the Landlord under any such lease is reimbursed for operating expenses and taxes. The determination of Prevailing Market shall also take into consideration any reasonably anticipated changes in the Prevailing Market rate from the time such Prevailing Market rate is being determined and the time such Prevailing Market rate will become effective under this Lease. The Prevailing Market Rate shall not constitute a breach take into account the value added by improvements constructed by or for Tenant, including the value of an Additional Cost or Tenant's contribution to construction of the Building Shell. Parking. Tenant shall have the right to use the parking areas serving the Buildings free of charge during the Term of this Indenture Supplement if at Lease. Tenant agrees not to overburden the time of such failure, parking facilities and agrees to cooperate with Landlord in the transaction contemplated by the Transaction Documents shall otherwise be in compliance with the requirements of Regulation RR and (y) other than as permitted by Regulation RR, the Transferor shall not sell, transfer or hedge any assets used to satisfy risk retention obligations under Regulation RR.
(e) For the avoidance of doubt, in no event shall either use of the Indenture Trustee or parking facilities. Landlord reserves the Owner Trustee have any responsibility right in its absolute discretion to monitor compliance with or, subject determine whether the parking facilities are becoming overburdened and to their obligations under reconfigure the Transaction Documents, enforce compliance with, or be charged with knowledge of Regulation RR or any rules or regulations promulgated in connection therewith, nor shall it be liable to any investor or any other party whatsoever for any violation of Regulation RR or any rules or regulations promulgated in connection therewith or any similar provisions in effect or parking area and modify the breach of any related term of this Indenture Supplement, any Transaction Document or any other document made or delivered pursuant hereto or thereto.
(f) The Servicer will include the amount of the Seller’s Interest as of the most recent RR Measurement Date (or, with respect to the first such statement following the Closing Date, as of the Closing Date) on each statement delivered pursuant to Section 5.3(a).
(g) Comenity Bank confirms, represents and warrants existing ingress to and agrees with, and irrevocably and unconditionally undertakes to egress from the Issuer and the Indenture Trustee, solely for the benefit of each Applicable Investor, in connection with the EU Due Diligence and Retention Rules parking areas as in effect on the Closing Date, on an ongoing basis, Landlord shall deem appropriate so long as any Series 2019-A Notes remain Outstanding, that (i) Comenity Bank, as “originator” for Landlord does not materially reduce the purposes number of parking spaces serving the EU Due Diligence and Retention Rules, will retain on an ongoing basis a material net economic interest that is not less than 5% of the nominal value of the securitized exposures with respect to the Series 2019-A notes, in the form of a first loss tranche in accordance with the text of option (d) of Article 6(3) of the EU Securitization Regulation (as supplemented by Article 8 of the CRR Delegated Regulation), by holding, through the Transferor (its wholly-owned subsidiary), the right to receive distributions in respect of the Excess Collateral Amount relating to the Series 2019-A notes, (ii) Comenity Bank will not (and will not permit the Depositor or any of its Affiliates to) allow the retained interest to be subject to any credit risk mitigation, short position or other credit risk hedge or to be sold if, as a result, Comenity Bank would not retain a material net economic interest in an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with Article 6(1) of the EU Securitization Regulation (as supplemented by Article 12 of the CRR Delegated Regulation), (iii) Comenity Bank will not change the retention option or method of calculation of its net economic interest in the securitized exposures while the Series 2019-A Notes are outstanding, except as permitted under Article 6(1) of the EU Securitization Regulation (as supplemented by Article 10 of the CRR Delegated Regulation), and (iv) Comenity Bank will provide ongoing confirmation of Comenity Bank’s continued compliance with its obligations described in (i) and (ii) above in or concurrently with the delivery of each statement delivered pursuant to Section 5.3(a)Buildings.
Appears in 1 contract