Dated April 6, 2022 Base Indenture between EWC Master Issuer LLC, as Master Issuer, and
Exhibit 4.1
Dated April 6, 2022
between
EWC Master Issuer LLC, as Master Issuer,
and
Citibank, N.A.,
as Trustee and Securities Intermediary
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1 Definitions 1
Section 1.2 Cross-References 1
Section 1.3 Accounting Terms; Accounting and Financial Determinations; No
Duplication 2
Section 1.4 Rules of Construction 2
ARTICLE II THE NOTES 3
Section 2.1 Designation and Terms of Notes 3
Section 2.2 Notes Issuable in Series 4
Section 2.3 Series Supplement for Each Series 10
Section 2.4 Execution and Authentication 11
Section 2.5 Registrar and Paying Agent 12
Section 2.6 Paying Agent to Hold Money in Trust 13
Section 2.7 Noteholder List 14
Section 2.8 Transfer and Exchange 15
Section 2.9 Persons Deemed Owners 16
Section 2.10 Replacement Notes 17
Section 2.11 Treasury Notes 17
Section 2.12 Book-Entry Notes 18
Section 2.13 Definitive Notes 19
Section 2.14 Cancellation 20
Section 2.15 Principal and Interest 21
Section 2.16 Tax Treatment 21
Section 2.17 Tax Withholding 22
ARTICLE III SECURITY 22
Section 3.1 Grant of Security Interest 22
Section 3.2 Certain Rights and Obligations of the Master Issuer Unaffected 24
Section 3.3 Performance of Collateral Transaction Documents 25
Section 3.4 Stamp, Other Similar Taxes and Filing Fees 25
Section 3.5 Authorization to File Financing Statements 25
ARTICLE IV REPORTS 26
Section 4.1 Reports and Instructions to Trustee 26
Section 4.2 Rule 144A Information 29
Section 4.3 Reports, Financial Statements and Other Information to
Noteholders 29
Section 4.4 Manager 30
Section 4.5 No Constructive Notice 30
ARTICLE V ALLOCATION AND APPLICATION OF COLLECTIONS 30
Section 5.1 Administration of Accounts and Additional Accounts. 30
Section 5.2 Management Accounts and Additional Accounts 31
Section 5.3 Senior Notes Interest Reserve Account 32
Section 5.4 Senior Subordinated Notes Interest Reserve Account 33
Section 5.5 Advance Funding Reserve Account. 34
Section 5.6 Cash Trap Reserve Account 35
Section 5.7 Collection Account 36
Section 5.8 Collection Account Administrative Accounts 36
Section 5.9 Hedge Payment Account 38
Section 5.10 Trustee as Securities Intermediary 39
Section 5.11 Establishment of Series Accounts; Legacy Accounts 40
Section 5.12 Collections and Investment Income 41
Section 5.13 Application of Collections on Weekly Allocation Dates 46
Section 5.14 Quarterly Payment Date Applications 51
Section 5.15 Determination of Quarterly Interest 65
Section 5.16 Determination of Quarterly Principal 65
Section 5.17 Prepayment of Principal 65
Section 5.18 Retained Collections Contributions 65
Section 5.19 Interest Reserve Letters of Credit 66
Section 5.20 Replacement of Ineligible Accounts 68
Section 5.21 Instructions and Directions 68
ARTICLE VI DISTRIBUTIONS 69
Section 6.1 Distributions in General 69
ARTICLE VII REPRESENTATIONS AND WARRANTIES 70
Section 7.1 Existence and Power 70
Section 7.2 Company and Governmental Authorization 70
Section 7.3 No Consent 70
Section 7.4 Binding Effect 71
Section 7.5 Litigation 71
Section 7.6 No ERISA Plans 71
Section 7.7 Tax Filings and Expenses 72
Section 7.8 Disclosure 72
Section 7.9 1940 Act 72
Section 7.10 Regulations T, U and X. 72
Section 7.11 Solvency 73
Section 7.12 Ownership of Equity Interests; Subsidiaries 73
Section 7.13 Security Interests 73
Section 7.14 Related Documents 75
Section 7.15 Non-Existence of Other Agreements. 75
Section 7.16 Compliance with Contractual Obligations and Laws 75
Section 7.17 Other Representations 75
Section 7.18 No Employees 75
Section 7.19 Insurance 75
Section 7.20 Environmental Matters 76
Section 7.21 Intellectual Property 76
ARTICLE VIII COVENANTS 78
Section 8.1 Payment of Notes 78
Section 8.2 Maintenance of Office or Agency 78
Section 8.3 Payment and Performance of Obligations 79
Section 8.4 Maintenance of Existence 79
Section 8.5 Compliance with Laws 79
Section 8.6 Inspection of Property; Books and Records 79
Section 8.7 Actions under the Collateral Transaction Documents and Related
Documents 80
Section 8.8 Notice of Defaults and Other Events 81
Section 8.9 Notice of Material Proceedings 82
Section 8.10 Further Requests 82
Section 8.11 Further Assurances 82
Section 8.12 Liens 84
Section 8.13 Other Indebtedness 84
Section 8.14 Employee Benefit Plans 84
Section 8.15 Mergers 84
Section 8.16 Asset Dispositions 85
Section 8.17 Acquisition of Assets 86
Section 8.18 Dividends, Officers’ Compensation, etc. 87
Section 8.19 Legal Name, Location Under Section 9-301 or 9-307 87
Section 8.20 Charter Documents 88
Section 8.21 Investments 88
Section 8.22 No Other Agreements 88
Section 8.23 Other Business 89
Section 8.24 Maintenance of Separate Existence 89
Section 8.25 Covenants Regarding the Securitization IP 90
Section 8.26 1940 Act. 92
Section 8.27 Real Property 92
Section 8.28 No Employees 92
Section 8.29 Insurance 92
Section 8.30 Litigation 93
Section 8.31 Environmental 93
Section 8.32 Enhancements 93
Section 8.33 Series Hedge Agreements; Derivatives Generally 93
Section 8.34 Additional Securitization Entity 94
Section 8.35 Subordinated Notes Repayments 95
Section 8.36 Tax Lien Reserve Amount 95
Section 8.37 Bankruptcy Proceedings 95
ARTICLE IX REMEDIES 96
Section 9.1 Rapid Amortization Events 96
Section 9.2 Events of Default 96
Section 9.3 Rights of the Control Party and Trustee upon Event of Default 100
Section 9.4 Waiver of Appraisal, Valuation, Stay and Right to Marshaling 103
Section 9.5 Limited Recourse 104
Section 9.6 Optional Preservation of the Securitized Assets 104
Section 9.7 Waiver of Past Events 104
Section 9.8 Control by the Control Party 105
Section 9.9 Limitation on Suits 106
Section 9.10 Unconditional Rights of Noteholders to Receive Payment 106
Section 9.11 The Trustee May File Proofs of Claim 106
Section 9.12 Undertaking for Costs 107
Section 9.13 Restoration of Rights and Remedies 107
Section 9.14 Rights and Remedies Cumulative 107
Section 9.15 Delay or Omission Not Waiver 108
Section 9.16 Waiver of Stay or Extension Laws 108
ARTICLE X THE TRUSTEE 108
Section 10.1 Duties of the Trustee 108
Section 10.2 Rights of the Trustee 111
Section 10.3 Individual Rights of the Trustee 114
Section 10.4 Notice of Events of Default and Defaults 115
Section 10.5 Compensation and Indemnity 115
Section 10.6 Replacement of the Trustee 116
Section 10.7 Successor Trustee by Merger, etc 117
Section 10.8 Eligibility Disqualification 117
Section 10.9 Appointment of Co-Trustee or Separate Trustee 117
Section 10.10 Representations and Warranties of Trustee 119
ARTICLE XI CONTROLLING CLASS REPRESENTATIVE AND CONTROL PARTY 119
Section 11.1 Controlling Class Representative 119
Section 11.2 Resignation or Removal of the Controlling Class Representative 122
Section 11.3 Expenses and Liabilities of the Controlling Class Representative 123
Section 11.4 Control Party 123
Section 11.5 Note Owner List 126
ARTICLE XII DISCHARGE OF INDENTURE 127
Section 12.1 Termination of the Master Issuer’s and Guarantors’ Obligations 127
Section 12.2 Application of Trust Money 130
Section 12.3 Repayment to the Master Issuer 130
Section 12.4 Reinstatement 131
ARTICLE XIII AMENDMENTS 131
Section 13.1 Without Consent of the Control Party, the Controlling Class
Representative or the Noteholders 131
Section 13.2 With Consent of the Controlling Class Representative or the
Noteholders 135
Section 13.3 Supplements 137
Section 13.4 Revocation and Effect of Consents 137
Section 13.5 Notation on or Exchange of Notes 137
Section 13.6 The Trustee to Sign Amendments, etc. 137
Section 13.7 Amendments and Fees 138
ARTICLE XIV MISCELLANEOUS 138
Section 14.1 Notices 138
Section 14.2 Communication by Holders With Other Holders 141
Section 14.3 Officer’s Certificate as to Conditions Precedent 141
Section 14.4 Statements Required in Certificate 141
Section 14.5 Rules by the Trustee 142
Section 14.6 Benefits of Indenture 142
Section 14.7 Payment on Business Day 142
Section 14.8 Governing Law 142
Section 14.9 Successors 142
Section 14.10 Severability 143
Section 14.11 Counterpart Originals 143
Section 14.12 Table of Contents, Headings, etc. 143
Section 14.13 No Bankruptcy Petition Against the Securitization Entities 143
Section 14.14 Recording of Indenture 143
Section 14.15 Waiver of Jury Trial 143
Section 14.16 Submission to Jurisdiction; Waivers 144
Section 14.17 Permitted Asset Dispositions; Release of Collateral 144
Section 14.18 Calculation of Holdco Leverage Ratio and Senior ABS Leverage
Ratio 145
Section 14.19 Instructions and Directions on Behalf of the Master Issuer 146
Section 14.1 Electronic Signatures and Transmission. 146
ANNEXES |
|
|
Annex A |
-- |
Base Indenture Definitions List |
EXHIBITS |
|
|
Exhibit A |
-- |
Weekly Manager’s Certificate |
Exhibit B-1 |
-- |
Form of Notice of Grant of Security Interest in Trademarks |
Exhibit B-2 |
-- |
Form of Notice of Grant of Security Interest in Patents |
Exhibit B-3 |
-- |
Form of Grant of Security Interest in Copyrights |
Exhibit C-1 |
-- |
Form of Supplemental Notice of Grant of Security Interest in |
|
|
Trademarks |
Exhibit C-2 |
-- |
Form of Supplemental Notice of Grant of Security Interest in Patents |
Exhibit C-3 |
-- |
Form of Supplemental Grant of Security Interest in Copyrights |
Exhibit D |
-- |
Form of Permitted Recipient Certification |
Exhibit E |
-- |
Form of CCR Election Notice |
Exhibit F |
-- |
Nomination for Controlling Class Representative |
Exhibit G |
-- |
Ballot for Controlling Class Representative |
Exhibit H |
-- |
Form of Note Owner Certificate |
Exhibit I |
-- |
Form of CCR Acceptance Letter |
Exhibit J |
-- |
Form of Notice of Non-Election of CCR |
Exhibit K |
-- |
Form of Collateral Protection Payment Request |
SCHEDULES |
|
|
Schedule 7.13(a) |
-- |
Non-Perfected Liens |
Schedule 7.19 |
-- |
Insurance |
BASE INDENTURE, dated as of April 6, 2022, by and between EWC Master Issuer LLC, a Delaware limited liability company (the “Master Issuer”), and CITIBANK, N.A., a national banking association, not in its individual capacity, but solely as trustee (in such capacity, the “Trustee”) and as securities intermediary (in such capacity, the “Securities Intermediary”).
W I T N E S S E T H:
WHEREAS, the Master Issuer has duly authorized the execution and delivery of this Base Indenture to provide for the issuance from time to time of one or more Series of asset backed notes (the “Notes”), as provided in this Base Indenture and any Series Supplement; and
WHEREAS, all things necessary to make this Base Indenture a legal, valid and binding agreement of the Master Issuer, in accordance with its terms, have been done, and the Master Issuer proposes to do all the things necessary to make the Notes, when executed by the Master Issuer and authenticated and delivered by the Trustee (or registered, in the case of Uncertificated Notes) hereunder and duly issued by the Master Issuer, the legal, valid and binding obligations of the Master Issuer as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and the receipt of
the Notes by the Noteholders, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Noteholders (in accordance with the priorities set forth herein and in any Series Supplement), as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
Section 1.2 Cross-References.
Unless otherwise specified, references in the Indenture and in each other Related Document to any Article or Section are references to such Article or Section of the Indenture or such other Related Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
Section 1.3 Accounting Terms; Accounting and Financial Determinations; No Duplication.
or the Related Documents shall be construed in conformity with GAAP.
Section 1.4 Rules of Construction.
In the Indenture and the other Related Documents, unless the context otherwise requires:
among the Class pro rata unless expressly provided for in the applicable Series Supplement for such Subclass or Tranche;
ARTICLE II THE NOTES
Section 2.1 Designation and Terms of Notes.
execution of such Notes by such Authorized Officer. All Notes of any Series shall, except as specified in the Series Supplement for such Series and in the Base Indenture, be equally and ratably entitled as provided herein to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery (or registration, in the case of Uncertificated Notes), all in accordance with the terms and provisions of this Base Indenture and the Series Supplement for such Series. The aggregate principal amount of Notes which may be authenticated and delivered (or, with respect to Uncertificated Notes, registered) under this Base Indenture is unlimited. The Notes of each Series shall be issued in the denominations set forth in the Series Supplement for such Series.
Section 2.2 Notes Issuable in Series.
the context requires otherwise, also include any Class, Subclass or Tranche of such Series. Any Series of Class A-1 Notes may be uncertificated, if provided for in its Series Supplement.
2.3 executed by the Master Issuer and the Trustee and specifying the Principal Terms of such Notes;
2.00x;
Termination Event has occurred and is continuing or will occur as a result of such issuance;
provided that no Officer’s Certificate as described in this clause (vi) shall be required to be delivered on the Closing Date, and provided, further, that none of the conditions set forth in the foregoing clauses (A), (B), (C), (E), (F), (G), (H), (M), (N), and (O) of this clause (vi) shall apply and no Officer’s Certificates shall be required to include such representations under this clause (vi), in each case, if there are no Series of Notes Outstanding (apart from such Additional Notes) on the applicable Series Closing Date, or if all Series of Notes Outstanding (apart from such Additional Notes) will be repaid in full from the proceeds of issuance of the Additional Notes or otherwise on the applicable Series Closing Date;
from the proceeds of issuance of Additional Notes or otherwise on the applicable Series Closing Date or defeased in accordance with Section 12.1(c), only the opinions set forth in clauses (b) and
(ix) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
Section 2.2(b), the Trustee shall authenticate and deliver (or register, in the case of Uncertificated Notes), as provided above, such Additional Notes upon execution thereof by the Master Issuer.
Section 2.3 Series Supplement for Each Series.
In conjunction with the issuance of a new Series or Additional Notes (other than a Series of Notes) of an existing Series, Class, Subclass or Tranche of Notes, the parties hereto shall execute a Series Supplement for such new Series of Notes or a Supplement to the Series Supplement for such existing Series, Class, Subclass or Tranche of Notes, as applicable (and, in the case of Class A-1 Notes, a Variable Funding Note Purchase Agreement), which document(s) shall specify the relevant terms with respect to such Additional Notes, which may include, without limitation:
thereof, if any;
Counterparty, if any; and
provided, the Series Supplement for any new Series of Notes may alter the terms of this Base Indenture solely as those terms apply to the terms of such Series.
Section 2.4 Execution and Authentication.
scanned, electronic or facsimile. If an Authorized Officer of the Master Issuer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
“This is one of the Notes of a Series issued under the within mentioned Indenture.
Citibank, N.A., as Trustee
By: Authorized Signatory”
Section 2.5 Registrar and Paying Agent.
premium, may be an office of the Trustee, the Registrar or co-registrar or Paying Agent) where Notes may be presented for registration of transfer or for exchange (or de-registration, in the case of Uncertificated Notes) (the “Registrar”) and (ii) appoint a paying agent (which shall satisfy the eligibility criteria set forth in Section 10.8(a)) (the “Paying Agent”) at whose office or agency Notes (or evidence of ownership of Uncertificated Notes) may be presented for payment. The Registrar shall keep a register of the Notes (including the name and address of each such Noteholder) and of their transfer and exchange. The Trustee shall indicate in its books and records the commitment of each Noteholder, if applicable, and the principal (and stated interest) amount owing to each Noteholder from time to time. The Master Issuer may appoint one or more co- registrars and one or more additional paying agents. The term “Paying Agent” shall include any additional paying agent and the term “Registrar” shall include any co-registrars. The Master Issuer may change the Paying Agent or the Registrar without prior notice to any Noteholder. The Master Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Base Indenture. The Trustee is hereby initially appointed as the Registrar and the Paying Agent and shall send copies of all notices and demands received by the Trustee (other than those sent by the Master Issuer to the Trustee and those addressed to the Master Issuer) in connection with the Notes to the Master Issuer. Upon any resignation or removal of the Registrar, the Master Issuer shall promptly appoint a successor Registrar or, in the absence of such appointment, the Master Issuer shall assume the duties of the Registrar.
Section 2.6 Paying Agent to Hold Money in Trust.
Section 2.7 Noteholder List.
(5) Business Days after the receipt of such application. Such list shall be as of a date no more than
forty-five (45) days prior to the date of receipt of such Applicants’ request. Every Noteholder, by receiving and holding a Note, agrees with the Trustee that neither the Trustee, the Back-Up Manager, the Registrar nor any of their respective agents shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Noteholders hereunder, regardless of the source from which such information was obtained.
Section 2.8 Transfer and Exchange.
same benefits under the Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Section 2.9 Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Note (or any other transfer and de-registration of Uncertificated Notes), the Trustee, the Control Party, the Back-Up Manager, the Controlling Class Representative, any Agent and the Master Issuer shall deem and treat the Person in whose name any Note is registered (as of the day of determination) as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever (other than purposes in which the vote or consent of a Note Owner is permitted pursuant to this Base Indenture, the applicable Series Supplement or any Variable Funding Note Purchase Agreement and, to the extent applicable, the rules of a Clearing Agency),
whether or not such Note is overdue, and none of the Trustee, the Control Party, the Back-Up Manager, the Controlling Class Representative, any Agent nor the Master Issuer shall be affected by notice to the contrary.
Section 2.10 Replacement Notes.
(ii) there is delivered to the Master Issuer and the Trustee such security or indemnity as may be required by them to hold the Master Issuer and the Trustee harmless, then, provided that the requirements of Section 2.8(f) and Section 8-405 of the New York UCC are met, the Master Issuer shall execute and upon its request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the preceding sentence, a protected purchaser (within the meaning of Section 8-303 of the New York UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Master Issuer and the Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Master Issuer or the Trustee in connection therewith.
Section 2.11 Treasury Notes.
In determining whether the Noteholders of the required Aggregate Outstanding Principal Amount of Notes or the required Outstanding Principal Amount of any Series, Class, Subclass or Tranche of Notes, as the case may be, have concurred in any direction, waiver or consent, Notes owned, legally or beneficially, by the Master Issuer or any Affiliate of the Master Issuer shall be considered as though they are not Outstanding, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of which a Trust Officer has received written notice of such ownership shall be so disregarded.
Absent written notice to a Trust Officer of such ownership, the Trustee shall not be deemed to have knowledge of the identity of the individual Note Owners.
Section 2.12 Book-Entry Notes.
Section 2.13 Definitive Notes.
shall notify all Note Owners of such Series, Class, Subclass or Tranche, through the applicable Clearing Agency Participants, of the occurrence of any such event and of the availability of Definitive Notes (or Uncertificated Notes) to Note Owners of such Series, Class, Subclass or Tranche. Upon surrender to the Trustee of the Notes of such Series, Class, Subclass or Tranche by the applicable Clearing Agency, accompanied by registration instructions from the applicable Clearing Agency for registration, the Master Issuer shall execute (other than with respect to Uncertificated Notes) and the Trustee shall authenticate, upon receipt of a Company Order, and deliver an equal aggregate principal amount of Definitive Notes in accordance with the instructions of the Clearing Agency. Neither the Master Issuer nor the Trustee shall be liable for any delay in delivery of such instructions and may each conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes (or Uncertificated Notes) of such Series, Class, Subclass or Tranche of such Series of Notes all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such Definitive Notes (or Uncertificated Notes), and the Trustee shall recognize the Holders of the Definitive Notes (or Uncertificated Notes) of such Series, Class, Subclass or Tranche of such
Series as Noteholders of such Series, Class, Subclass or Tranche of such Series hereunder and under the applicable Series Supplement.
Section 2.14 Cancellation.
The Master Issuer may at any time deliver to the Trustee for cancellation (or de- registration) any Notes previously authenticated and delivered (or registered, in the case of Uncertificated Notes) hereunder which the Master Issuer or an Affiliate thereof may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled (or de- registered) by the Trustee. Upon the written instruction of the Master Issuer (or the Manager on its behalf), the Trustee shall cancel (or de-register) any repurchased Notes delivered to it by the Master Issuer (or the Manager on its behalf), either in certificated form or through the Applicable Procedures of DTC. Such cancelled (or de-registered) Notes shall not be reissued and upon cancellation (or de-registration) shall not be considered outstanding for purposes of calculating the DSCR, the Holdco Leverage Ratio or the Senior ABS Leverage Ratio. Immediately upon the delivery of any Notes by the Master Issuer to the Trustee for cancellation (or de-registration) pursuant to this Section 2.14 (or as set forth in any applicable Series Supplement, with respect to the de-registration of Uncertificated Notes), the security interest of the Secured Parties in such Notes shall automatically be deemed to be released by the Trustee, and the Trustee shall execute and deliver to the Master Issuer any and all documentation reasonably requested and prepared by the Master Issuer at its expense to evidence such automatic release. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment (or de-registration of Uncertificated Notes). The Trustee shall cancel (or de- register) all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation (or de-registration). Except as provided in any Variable Funding Note Purchase Agreement executed and delivered in connection with the issuance of any Notes, the Master Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled Notes held by the Trustee shall be disposed of in accordance with the Trustee’s standard disposition procedures unless the Master Issuer shall direct that cancelled Notes be returned to it for destruction pursuant to a Company Order. No cancelled (or de-registered) Notes may be reissued. No provision of this Base Indenture or any Series
Supplement that relates to prepayment procedures, penalties, fees, make-whole payments or any other related matters shall be applicable to any Notes cancelled (or de-registered) pursuant to and in accordance with this Section 2.14.
Section 2.15 Principal and Interest.
Section 2.16 Tax Treatment.
The Master Issuer has structured this Base Indenture and the Notes have been (or will be) issued with the intention that the Notes will qualify under applicable tax law as Indebtedness of the Master Issuer or, if the Master Issuer is treated as a division of another entity for federal income tax purposes, such other entity, and any entity acquiring any direct or indirect interest in any Note by acceptance of its Notes (or, in the case of a Note Owner, by virtue of such Note Owner’s acquisition of a beneficial interest therein) (or registration of an Uncertificated Note) agrees to treat the Notes (or beneficial interests therein) for all purposes of United States federal, state, local and foreign income or franchise Taxes and any other Tax imposed on or measured by income, as Indebtedness of the Master Issuer or, if the Master Issuer is treated as a division of another entity for federal income tax purposes, such other entity.
Section 2.17 Tax Withholding.
The Paying Agent and the Master Issuer (or other Person responsible for withholding of Taxes) has the right to withhold on payments with respect to a Note (without any corresponding gross-up) where an applicable party fails to provide the Paying Agent or the Master Issuer, as applicable, with appropriate tax certifications (which includes, but is not limited to, (i) an IRS Form W-9 for United States persons (as defined under Section 7701(a)(30) of the Code) or any applicable successor form or (ii) an applicable IRS Form W-8 and any required attachments, for Persons other than United States persons, or applicable successor form, or the Paying Agent or the Master Issuer (or other Person responsible for withholding of Taxes) is otherwise required to so withhold under applicable law.
ARTICLE III SECURITY
Section 3.1 Grant of Security Interest.
Accounts;
(iii) any Interest Reserve Letter of Credit;
(iv) the books and records (whether in physical, electronic or other form) of the Master Issuer;
(v) the rights, powers, remedies and authorities of the Master Issuer under each of the Related Documents (other than the Indenture and the Notes) to which it is a party;
(vi) any and all other property of the Master Issuer now owned or hereafter
acquired; and
(vii) all payments, proceeds, supporting obligations and accrued and future rights
to payment with respect to the foregoing;
provided that (A) the Indenture Collateral shall exclude the Collateral Exclusions; (B) the Master Issuer shall not be required to pledge more than 65% of the Equity Interests (and any rights associated with such Equity Interests) of (i) any foreign Subsidiary of any of the Master Issuer or the Guarantors that is a Controlled Foreign Corporation or (ii) any domestic Subsidiary, substantially all of the assets of which are the equity interests of Controlled Foreign Corporations (each, a “Foreign Subsidiary Holding Company”), and in no circumstance will any such foreign Subsidiary that is a Controlled Foreign Corporation, any U.S. Subsidiary of a foreign Subsidiary that is a Controlled Foreign Corporation or any Foreign Subsidiary Holding Company be required to pledge any assets, serve as Guarantor, or otherwise guarantee the Notes; (C) the security interest in (1) the Senior Notes Interest Reserve Account and the related property shall only be for the benefit of the Senior Noteholders and the Trustee, in its capacity as trustee for the Senior Noteholders, (2) the Senior Subordinated Notes Interest Reserve Account and the related property shall only be for the benefit of the Senior Subordinated Noteholders and the Trustee, in its capacity as trustee for the Senior Subordinated Noteholders and (3) each Series Distribution Account and the related property thereto shall only be for the benefit of the applicable Series Noteholders as set forth in the applicable Series Supplement; and (D) any Cash Collateral deposited by any Non- Securitization Entities with the Master Issuer to secure such Non-Securitization Entities’ obligations under any Letter of Credit Reimbursement Agreement shall not constitute Indenture Collateral until such time (if any) as the Master Issuer is entitled to withdraw such funds from the applicable bank account pursuant to the terms of such Letter of Credit Reimbursement Agreement to reimburse the Master Issuer for any amounts due by such Non-Securitization Entities to the Master Issuer pursuant to such Letter of Credit Reimbursement Agreement that such Non- Securitization Entities have not paid to the Master Issuer in accordance with the terms thereof.
“Collateral Exclusions” means the following property of the Securitization Entities:
(i) any lease, sublease, license, or other contract or permit, in each case if the grant of a Lien or security interest in any of the Securitization Entities’ right, title and interest in, to or under such lease, sublease, license, contract or permit (or any rights or interests thereunder) in the manner contemplated by the Indenture (a) is prohibited by the terms of such lease, sublease, license, contract or permit (or any rights or interests thereunder) or would require the consent of a third party (unless such consent has been obtained), (b) would constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of the applicable Securitization Entity therein or (c) would otherwise result in a breach thereof or the termination or a right of termination
thereof, except to the extent that any such prohibition, breach, termination or right of termination is rendered ineffective pursuant to the UCC or any other applicable law, (ii) the Excepted Securitization IP Assets, (iii) any leasehold interests in real property, (iv) the Excluded Amounts and (v) Product Costs. The Trustee, on behalf of the Secured Parties, acknowledges that it shall have no security interest in any Collateral Exclusions.
Section 3.2 Certain Rights and Obligations of the Master Issuer Unaffected.
Section 3.3 Performance of Collateral Transaction Documents.
Upon the occurrence of a default or breach (after giving effect to any applicable grace or cure periods) by any Person party to (a) a Collateral Transaction Document or (b) a Collateral Business Document (only if a Manager Termination Event or an Event of Default has occurred and is continuing), promptly following a request from the Trustee to do so and at the Master Issuer’s expense, the Master Issuer agrees to take all such lawful action as permitted under this Base Indenture as the Trustee (acting at the direction of the Control Party (acting at the direction of the Controlling Class Representative)) may reasonably request to compel or secure the performance and observance by such Person of its obligations to the Master Issuer, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Master Issuer to the extent and in the manner directed by the Trustee (acting at the direction of the Control Party (acting at the direction of the Controlling Class Representative)), including, without limitation, the transmission of notices of default and the institution of legal or administrative actions or proceedings to compel or secure performance by such Person of its obligations thereunder. If (i) the Master Issuer shall have failed, within ten (10) days of receiving the direction of the Trustee (given at the direction of the Control Party (at the direction of the Controlling Class Representative)), to take commercially reasonable action to accomplish such directions of the Trustee, (ii) the Master Issuer refuses to take any such action, as reasonably determined by the Trustee in good faith, or (iii) the Control Party (acting at the direction of the Controlling Class Representative) reasonably determines that such action must be taken immediately, in any such case the Control Party may, but shall not be obligated to, take, and the Trustee shall take (if so directed by the Control Party (acting at the direction of the Controlling Class Representative)), at the expense of the Master Issuer, such previously directed action and any related action permitted under this Base Indenture which the Control Party (acting at the direction of the Controlling Class Representative) thereafter determines is appropriate (without the need under this provision or any other provision under this Base Indenture to direct the Master Issuer to take such action), on behalf of the Master Issuer and the Secured Parties.
Section 3.4 Stamp, Other Similar Taxes and Filing Fees.
The Master Issuer shall indemnify and hold harmless the Trustee and each Secured Party from any present or future claim for liability for any stamp, documentary or other similar tax and any penalties or interest and expenses with respect thereto, that may be assessed, levied or collected by any jurisdiction in connection with the Indenture, any other Related Document or the Securitized Assets. The Master Issuer shall pay, and indemnify and hold harmless each Secured Party against, any and all amounts in respect of all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts that may be payable or determined to be payable in respect of the execution, delivery, performance and/or enforcement of the Indenture or any other Related Document.
Section 3.5 Authorization to File Financing Statements.
Indenture Collateral to perfect the security interests of the Trustee for the benefit of the Secured Parties under this Base Indenture; provided, that with respect to applications and registrations for Intellectual Property, this authorization is applicable only with respect to U.S. registrations and applications for Patents, Copyrights and Trademarks. The Master Issuer authorizes the filing of any such financing statement naming the Trustee as secured party and indicating that the Indenture Collateral includes “all assets” or words of similar effect or import regardless of whether any particular assets comprised in the Indenture Collateral fall within the scope of Article 9 of the UCC, including, without limitation, any and all Securitization IP. The Master Issuer agrees to furnish any information necessary to accomplish the foregoing promptly upon the Control Party’s request (acting at the direction of the Controlling Class Representative). The Master Issuer also hereby ratifies and authorizes the filing on behalf of the Secured Parties of any financing statement with respect to the Indenture Collateral made prior to the date hereof.
ARTICLE IV REPORTS
Section 4.1 Reports and Instructions to Trustee.
Notwithstanding the foregoing, (x) the obligations set forth in this Section 4.1(g) may be satisfied by furnishing Holdco’s Form 10-K or 10-Q, as applicable, filed with the SEC on the timeframe that the SEC shall provide or permit from time to time, and (y) for the avoidance of doubt, in no event shall the delivery requirements set forth in this Section 4.1(g) apply to the Back-Up Manager while it is acting as Interim Successor Manager or Successor Manager.
Section 4.2 Rule 144A Information.
The Master Issuer agrees to provide to any Holder, and to any prospective purchaser of Notes designated by such Holder upon the request of such Holder or prospective purchaser, any information required to be provided to such Holder or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under the 1933 Act.
Section 4.3 Reports, Financial Statements and Other Information to
Noteholders.
Subject to the last paragraph of this Section 4.3, the Trustee shall make this Base Indenture, the Guarantee and Collateral Agreement, the applicable offering circular, each Series Supplement, the Quarterly Noteholders’ Reports, the Quarterly Compliance Certificates, the financial statements referenced in Section 4.1(f) and Section 4.1(g) and the reports referenced in Section 4.1(e) available to each Rating Agency and the Permitted Recipients in a password-protected area of the Trustee’s internet website at xxx.xx.xxxxxxxxxx.xxx (or such other address as the Trustee
may specify from time to time) or on a third-party investor information platform and in addition, at the election of the Master Issuer, such other address as the Master Issuer may specify from time to time (it being agreed that in the event there is any discrepancy between any documentation or information posted on any such website hosted by the Master Issuer and the Trustee’s website, the Trustee’s website shall control). Assistance in using the Trustee’s internet website can be obtained by calling the Trustee’s customer service desk at 0-(000) 000-0000 or such other telephone number as the Trustee may specify from time to time. The Trustee or any such third-party platform, as the case may be, will require each party (other than the Control Party, the Manager, the Back-Up Manager and each Rating Agency) accessing such password-protected area to register as a Permitted Recipient and to make the applicable representations and warranties in a Permitted Recipient Certification (which, for the avoidance of doubt, may take the form of an electronic submission); provided, however, that Bloomberg and Intex will be permitted access to the password-protected area without completing a Permitted Recipient Certification. The Trustee and any such third-party platform may disclaim responsibility for any information distributed by it for which the Trustee or such third-party, as the case may be, was not the original source. Each time a Permitted Recipient accesses such internet website, it will be deemed to have confirmed such representations and warranties as of the date thereof. The Trustee or any such third-party platform will provide the Control Party and the Manager with copies of such Permitted Recipient Certifications, including the identity, contact information, e-mail address and telephone number of such Permitted Recipients, upon request, but shall have no responsibility for any of the information contained therein. The Trustee shall have the right to change the way any such information is made available in order to make such distribution more convenient and/or more accessible, and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes. Notwithstanding the foregoing, if a Permitted Recipient that is required to deliver a Permitted Recipient Certificate is unwilling to execute a Permitted Recipient Certification, such Permitted Recipient will nonetheless be permitted to access the password-protected area of the Trustee’s internet website or other relevant third-party investor information platform with the prior written consent of the Manager.
The Trustee shall also (or shall request that the Manager) make available, upon reasonable advance notice and at the expense of the requesting party, copies of the related offering
memorandum, this Base Indenture, the Guarantee and Collateral Agreement, each Series Supplement, the Quarterly Noteholders’ Reports, the Quarterly Compliance Certificates, the financial statements referenced in Section 4.1(f) and Section 4.1(g) and the reports referenced in Section 4.1(e) to any Permitted Recipient that provides the Trustee with a Permitted Recipient Certification.
Section 4.4 Manager.
Pursuant to the Management Agreement, the Manager has agreed to provide certain reports, notices, instructions and other services on behalf of the Master Issuer. The Holders by their acceptance of the Notes consent to the provision of such reports and notices to the Trustee by the Manager in lieu of the Master Issuer. Any such reports and notices that are required to be delivered to the Holders hereunder shall be delivered by the Trustee. The Trustee shall have no obligation whatsoever to verify, reconfirm or recalculate any information or material contained in any of the reports, financial statements or other information delivered to it pursuant to this Article IV or the Management Agreement. All distributions, allocations, remittances and payments to be made by the Trustee or the Paying Agent hereunder or under any Series Supplement or Variable Funding Note Purchase Agreement shall be made based solely upon the most recently delivered written reports and instructions provided to the Trustee or Paying Agent, as the case may be, by the Manager.
Section 4.5 No Constructive Notice.
Delivery of reports, information, Officer’s Certificates and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports, information, Officer’s Certificates and documents shall not constitute constructive notice to the Trustee of any information contained therein or determinable from information contained therein, including any Securitization Entity’s, the Manager’s or any other Person’s compliance with any of its covenants under the Indenture, the Notes or any other Related Document (as to which the Trustee is entitled to rely exclusively on the most recent Quarterly Compliance Certificate described above).
ARTICLE V
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 5.1 Administration of Accounts and Additional Accounts.
Each Account and any additional accounts described in this Article V, as of the Closing Date and at all times thereafter, shall be (A) an Eligible Account, (B) pledged by (i) the Master Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 hereof or (ii) such other Securitization Entity to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 of the Guarantee and Collateral Agreement (C) except as provided in the immediately succeeding sentence or in Section 5.2(a) below, if not established with the Trustee or otherwise controlled by the Trustee under the New York UCC, subject to an Account Control Agreement and (D) subject to the jurisdiction of the State of New York (i) for purposes of the UCC and (ii) for all issues specified in Article 2(1) of the Hague Securities Convention. For any Account required to be subject to an Account Control Agreement on the Closing Date pursuant to the
preceding sentence, such Account shall not be in violation of the requirements to be subject to an Account Control Agreement for a period of 60 (sixty) days following the Closing Date, so long as any amounts on deposit in such Account are transferred on a daily basis to an Account meeting the requirements of the prior sentence.
Section 5.2 Management Accounts and Additional Accounts.
deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.12.
Section 5.3 Senior Notes Interest Reserve Account.
shall be invested as fully as practicable in the Standby Investment or shall be held in cash if such investment is unavailable. All income or other gain from such Eligible Investments shall be credited to the Senior Notes Interest Reserve Account, and any loss resulting from such investments shall be charged to the Senior Notes Interest Reserve Account. The Master Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
Section 5.4 Senior Subordinated Notes Interest Reserve Account.
trustee for the Senior Subordinated Noteholders, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the foregoing Secured Parties; provided that, at the election of the Master Issuer (or the Manager on its behalf), the Senior Subordinated Notes Interest Reserve Account may be established in the name of the Franchisor pledged to the Trustee and subject to an Account Control Agreement for the benefit of the Secured Parties. The Senior Subordinated Notes Interest Reserve Account may also serve as a Franchisor Capital Account. The Senior Subordinated Notes Interest Reserve Account, once established, shall be an Eligible Account.
Section 5.5 Advance Funding Reserve Account.
such investment account is (A) an Eligible Account, (B) pledged by the Master Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement; provided, however, that any such investment in the Advance Funding Reserve Account (or in any such investment account) shall mature not later than the Business Day prior to the next succeeding Weekly Allocation Date. In the absence of written investment instructions hereunder, funds on deposit in the Advance Funding Reserve Account be invested as fully as practicable in the Standby Investment or shall be held in cash if such investment is unavailable. All income or other gain from such Eligible Investments shall be credited to the Advance Funding Reserve Account, and any loss resulting from such Eligible Investments shall be charged to the Advance Funding Reserve Account. The Master Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
Section 5.6 Cash Trap Reserve Account.
shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.12.
Section 5.7 Collection Account.
Section 5.8 Collection Account Administrative Accounts.
Interest Amount (together with any successor account, the “Senior Notes Interest Payment Account”);
Section 5.9 Hedge Payment Account.
Weekly Allocation Date. In the absence of written investment instructions hereunder, funds on deposit in the Hedge Payment Account shall be invested as fully as practicable in the Standby Investment or shall be held in cash if such investment is unavailable. All income or other gain from such Eligible Investments shall be credited to the Hedge Payment Account, and any loss resulting from such investments shall be charged to the Hedge Payment Account. The Master Issuer shall not shall direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
Section 5.10 Trustee as Securities Intermediary.
to the Trustee Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the Master Issuer or any other Person;
Section 5.11 Establishment of Series Accounts; Legacy Accounts.
Master Issuer may (but is not required to) elect to have all or any portion of the funds held in any Legacy Account with respect to such Series, Class, Subclass or Tranche of Notes transferred to the applicable distribution account for such Series, Class, Subclass or Tranche of Notes, for application toward the prepayment of such Series, Class, Subclass or Tranche of Notes. If the Master Issuer does not elect to have such funds so transferred, or if the Master Issuer elects to have only a portion of such funds so transferred, any funds remaining in the applicable Legacy Account after the applicable Notes Discharge Date shall be deposited into the Collection Account for application in accordance with the Priority of Payments. When the balance of any Legacy Account has been reduced to zero, the Trustee may close such account. The Trustee shall make the distributions and transfers and shall close any accounts as contemplated by this Section 5.11 pursuant to instructions delivered by the Master Issuer to the Trustee.
Section 5.12 Collections and Investment Income.
to the Holding Company Guarantor and by the Holding Company Guarantor to the Master Issuer to the extent such equity contributions are directed to be made to a Concentration Account;
The Concentration Reserve Amount shall initially be funded on the Closing Date and thereafter may be funded with proceeds of the Residual Amount or capital contributions (but in no event directly from Retained Collections). The Manager shall separately account for the Concentration Reserve Amount apart from other amounts held in the Concentration Accounts, and no part of the Concentration Reserve Amount shall be deemed to constitute Collections (or included in any calculation that includes amounts on deposit in the Concentration Accounts).
The Trustee shall deposit or cause to be deposited into the Collection Account amounts obtained by the Trustee or the Control Party on account of or as a result of the exercise by the Trustee or the Control Party of any of its rights under the Indenture, including without limitation under Article IX hereof upon receipt thereof.
Section 5.13 Application of Collections on Weekly Allocation Dates. On each Weekly Allocation Date, commencing on April 21, 2022, the Trustee shall, based solely on the information contained in the related Weekly Manager’s Certificate (or, if delivered in accordance with the terms of the Related Documents, based solely on the information contained in the Omitted Payable Sums Notice to the extent of the information contained therein), withdraw the amount on deposit in the Collection Account as of 10:00 a.m. (Eastern time) on the Weekly Allocation Date related to such preceding Weekly Collection Period for allocation or payment in the following order of priority:
basis based on commitment amounts and to cash collateralize any outstanding letters of credit; then
provided that any prepayment pursuant to clauses (C), (D), (E), (F) or (G) of this clause first shall be made on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate;
Securitization Operating Expense Amount with respect to the annual period in which such Weekly Allocation Date occurs after giving effect to all deposits previously made to the Securitization Operating Expense Account in such period, to be distributed pro rata based on the amount of each type of Securitization Operating Expense payable on such Weekly Allocation Date pursuant to this priority (v); provided, that the deposit to the Securitization Operating Expense Account of an amount equal to all accrued and unpaid fees, expenses and indemnities payable to the Trustee (in each of its capacities) and the payment of such sums to the Trustee will not be subject to the Capped Securitization Operating Expense Amount after an Event of Default has occurred and is continuing; provided, further, that the payment of any such fees, expenses and indemnities payable to the Trustee (in each of its capacities) that were incurred during any period while an Event of Default has occurred and is continuing shall not be subject to the Capped Securitization Operating Expense Amount, regardless of whether or not an Event of Default exists at the time of such payment;
that no amounts, with respect to any Series of Notes, will be deposited into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to this priority (ix) on any Weekly Allocation Date that occurs during the Quarterly Collection Period immediately preceding the Series Legal Final Maturity Date relating to such Series of Notes;
(2) any Senior Notes Quarterly Scheduled Principal Deficiency Amount and (3) amounts then known by the Manager that will become due under each Variable Funding Note Purchase Agreement prior to the immediately succeeding Quarterly Payment Date with respect to the cash collateralization of letters of credit issued under each Variable Funding Note Purchase Agreement;
(ii) If the aggregate amount of funds allocated to the Senior Subordinated Notes Principal Payment Account pursuant to priorities (xv), (xvi) and (xxviii) of the Priority of Payments on each Weekly Allocation Date with respect to the immediately preceding Quarterly Collection Period is insufficient to pay the sum (without duplication) of (A) the Senior Subordinated Notes Quarterly Scheduled Principal Amount and any Senior Subordinated Notes Quarterly Scheduled Principal Deficiency Amounts due with respect to each applicable Class of Senior Subordinated Notes on such Quarterly Payment Date and (B) if a Rapid Amortization Event has occurred and is continuing, the Outstanding Principal Amount of the Senior Subordinated Notes, on the next Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.14(p) shall be triggered and any funds reallocated as a result thereof into the Senior
Subordinated Notes Principal Payment Account shall be distributed in accordance with subclause
(i) above.
the immediately preceding Quarterly Collection Period, to be paid for the benefit of (A) in the case of funds allocated pursuant to priority (i) of the Priority of Payments, the Holders of each applicable Class of Subordinated Notes up to the aggregate amount of Indemnification Amounts, Asset Disposition Proceeds and Insurance/Condemnation Proceeds in the order of priority set forth in priority (i) of the Priority of Payments and (B) in the case of funds allocated pursuant to priorities (xxi), (xxii) and (xxix) of the Priority of Payments, and subclause (ii) below, if applicable, excluding any applicable Principal Release Amounts, the Holders of each applicable Class of Subordinated Notes in the order of priority set forth in the Priority of Payments with respect to such priorities (xxi), (xxii) and (xxix), in each case sequentially in order of alphanumerical designation and pro rata among each such Class of Subordinated Notes of the same alphanumerical designation based upon the Outstanding Principal Amount of the Subordinated Notes of such Class and deposit such funds into the applicable Series Distribution Account.
(ii) below, to be paid for the benefit of the Holders of each applicable Class of Senior Notes, up to the accrued and unpaid Senior Notes Quarterly Post-ARD Contingent Interest Amount due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each such Class of Senior Notes of the same alphanumerical designation based upon the Senior Notes Quarterly Post-ARD Contingent Interest Amount payable on each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii) If the aggregate amount of funds allocated to the Senior Notes Post-ARD Contingent Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Collection Period is insufficient to pay the Senior Notes Quarterly Post-ARD Contingent Interest Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.14(p) shall be triggered and any funds reallocated as a result thereof into the Senior Notes Post-ARD Contingent Interest Account shall be distributed in accordance with subclause (i) above.
(ii) If the aggregate amount of funds allocated to the Subordinated Notes Post- ARD Contingent Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Collection Period pursuant to subclause (i) above is insufficient to pay the Subordinated Notes Quarterly Post-ARD Contingent Interest Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.14(p) shall be
triggered and any funds reallocated as a result thereof into the Subordinated Notes Post-ARD Contingent Interest Account shall be distributed in accordance with subclause (i) above.
(xxi) in the case of a Principal Release Amount with respect to any Series of Subordinated Notes.
(iii) If no Rapid Amortization Period or Event of Default is continuing, but a Class A-1 Notes Amortization Event is continuing, on each Quarterly Calculation Date, the Master
Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the related Quarterly Payment Date, after giving effect to any allocations set forth in the Priority of Payments on such date, any Principal Release Amount from the Senior Notes Principal Payment Account, Senior Subordinated Notes Principal Payment Account or Subordinated Notes Principal Payment Account, as applicable, to the extent necessary to pay the Outstanding Principal Amount of the applicable Class A-1 Notes, and deposit such funds into the applicable Series Distribution Account for distribution to the Holders of the applicable Class A-1 Notes, pro rata, after giving effect to other amounts available for payment thereof. On the immediately succeeding Weekly Allocation Date, the Manager (on behalf of the Master Issuer) shall instruct the Trustee pursuant to the applicable Weekly Manager’s Certificate to distribute the remainder of the Principal Release
Amount, if any, in the priority set forth in the Priority of Payments, beginning at priority (xi), but excluding (i) priority (xvi) in the case of a Principal Release Amount with respect to any Series of Senior Subordinated Notes or (ii) priority (xxi) in the case of a Principal Release Amount with respect to any Series of Subordinated Notes.
Outstanding, all optional prepayments must be applied first, pro rata among each Class in order of priority, to Senior Notes, second, pro rata among each Class in order of priority, to Senior Subordinated Notes and third, pro rata among each Class in order of priority, to Subordinated Notes. The Master Issuer shall instruct the Trustee in writing to withdraw on each applicable optional prepayment date, including such prepayment dates that do not occur on Quarterly Payment Dates, the prepayment amounts on deposit in the applicable Series Distribution Account in accordance with the applicable Series Supplement or, to the extent applicable, the Variable Funding Note Purchase Agreement, and as set forth in the Quarterly Noteholders’ Report.
Section 5.15 Determination of Quarterly Interest.
Quarterly payments of interest and fees on each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement and, to the extent applicable, the Variable Funding Note Purchase Agreement, and as set forth in the Quarterly Noteholders’ Report.
Section 5.16 Determination of Quarterly Principal.
Quarterly payments of principal, if any, of each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement and, to the extent applicable, the Variable Funding Note Purchase Agreement, and as set forth in the Quarterly Noteholders’ Report.
Section 5.17 Prepayment of Principal.
Mandatory prepayments of principal, if any, of each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement, and to the extent applicable, the Variable Funding Note Purchase Agreement, in each case, if not otherwise described herein, and as set forth in the Quarterly Noteholders’ Report.
Section 5.18 Retained Collections Contributions.
With respect to any Quarterly Collection Period, the Master Issuer may designate Retained Collections Contributions made to the Master Issuer during such period to be included in Net Cash Flow, but not more than $2,500,000 in any Quarterly Collection Period or more than $5,000,000 during any period of four (4) consecutive Quarterly Collection Periods or more than $10,000,000 from the Closing Date to the latest Series Legal Final Maturity Date for any Notes Outstanding; provided that any Retained Collections Contribution made shall be excluded from the Net Cash
Flow for purposes of calculations undertaken in the following circumstances: (a) to determine compliance with any Series Non-Amortization Test and (b) to determine the New Series Pro Forma DSCR. The amount of any Retained Collections Contribution included in Net Cash Flow for the purpose of calculating the DSCR shall be retained in the Collection Account until the Weekly Allocation Date on which either (i) the DSCR for the period of four (4) Quarterly Collection Periods ended immediately prior to such Weekly Allocation Date is at least 1.75x without giving effect to the inclusion of such Retained Collections Contribution or (ii) such Retained Collections Contribution is required to pay any shortfall in the amounts payable under priorities (ii) through (xxx) of the Priority of Payments, to the extent of any shortfall on such Weekly Allocation Date. The Master Issuer shall not designate equity contributions as Retained Collections Contributions to the extent such equity contributions were funded by the proceeds of a draw under the Class A-1 Notes. For the avoidance of doubt, any funding of the Advance Funding Reserve Account shall not constitute a Retained Collections Contribution.
Section 5.19 Interest Reserve Letters of Credit.
The Master Issuer may, in lieu of funding (or as partial replacement for funding) the Senior Notes Interest Reserve Account and/or the Senior Subordinated Notes Interest Reserve Account in the amounts required hereunder, maintain one or more Interest Reserve Letters of Credit issued
under a Variable Funding Note Purchase Agreement for the benefit of the Trustee and the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, each in a face amount equal to the amounts required to be funded in respect of such account(s) had such Interest Reserve Letter of Credit not been issued. Where on any Quarterly Calculation Date the Master Issuer (or the Manager on its behalf) instructs the Trustee to withdraw funds from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, for allocation or payment on the following Quarterly Payment Date, such funds shall be drawn, first, from amounts on deposit in the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, on such Quarterly Calculation Date and second, from amounts available to be drawn under the applicable Interest Reserve Letter of Credit.
Each such Interest Reserve Letter of Credit (a) shall name each of the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and the Control Party as the beneficiary thereof; (b) shall allow the Trustee (or the Control Party on the Trustee’s behalf) to submit a notice of drawing in respect of such Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to Section 5.14; (c) shall have an expiration date of no later than ten (10) Business Days prior to the Class A-1 Notes Renewal Date specified in the related Variable Funding Note Purchase Agreement pursuant to which such Interest Reserve Letter of Credit was issued; and (d) shall indicate by its terms that the proceeds in respect of drawings under such Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The (i) Trustee (at the direction of the Master Issuer) shall or (ii) the Control Party (at the Master Issuer’s request and on the Master Issuer’s behalf) may, submit a notice of drawing under such Interest Reserve Letter of Credit issued by such L/C Provider, and the proceeds of any such draw shall be deposited into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable.
If, on the date that is five (5) Business Days prior to the expiration of any such Interest Reserve Letter of Credit, such Interest Reserve Letter of Credit has not been replaced or renewed and the Master Issuer has not otherwise deposited funds into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, in the amounts that would otherwise be required had such Interest Reserve Letter of Credit not been issued, the Control Party (on behalf of the Trustee) shall submit a notice of drawing under such Interest Reserve Letter of Credit and use the proceeds thereof to fund a deposit into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account (as directed in writing by the Manager), as applicable, in an amount equal to the Senior Notes Interest Reserve Account Deficiency Amount or the Senior Subordinated Notes Interest Reserve Account Deficiency Amount on such date, as applicable, in each case calculated as if such Interest Reserve Letter of Credit had not been issued.
If, on any day an Interest Reserve Letter of Credit is outstanding, such Interest Reserve Letter of Credit becomes an Ineligible Interest Reserve Letter of Credit, then (a) on the fifth (5th) Business Day after such day, either (i) the Master Issuer shall fund a deposit into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, or (ii) the Trustee (at the direction of the Master Issuer) or the Control Party (on the Master Issuer’s behalf) shall submit a notice of drawing under such Interest Reserve Letter(s) of Credit and apply the proceeds of such drawing to fund such account, in either case in an amount equal to the Senior Notes Interest Reserve Account Deficiency Amount or the Senior Subordinated Notes Interest Reserve Account Deficiency Amount on such date, in each case calculated as if such Interest Reserve Letter(s) of Credit had not been issued or (b) prior to the fifth (5th) Business Day after such day, the Master Issuer shall obtain one or more replacement Interest Reserve Letters of
Credit on substantially the same terms as each such Interest Reserve Letter of Credit being replaced.
In the event that an Interest Reserve Letter of Credit has been issued in satisfaction of the Senior Notes Interest Reserve Amount, the Master Issuer shall be entitled to submit an amendment to such Interest Reserve Letter of Credit and/or the excess amount of the related Interest Reserve Letter of Credit may be reduced by delivering a replacement or amended Interest Reserve Letter of Credit to the Control Party reflecting such reduced amount. If the existing Interest Reserve Letter of Credit is so amended, the Trustee and the Control Party shall be entitled to execute or acknowledge such amendment based solely on the written confirmation from the Manager (in the form of an Officer’s Certificate) acting in accordance with the Managing Standard as to the amount reflected in such amendment being at least equal difference between the Senior Notes Interest Reserve Amount and the amount on deposit in the Senior Notes Interest Reserve Account as of the immediately following Weekly Allocation Date (after the allocation of all amounts on such Weekly Allocation Date pursuant to the Priority of Payments). The Control Party will (without the consent of the Trustee, any Noteholder, the Controlling Class Representative or any other Secured Party) deliver to the L/C Provider any replaced Interest Reserve Letter of Credit for termination simultaneously with the receipt by the Control Party of the related replacement Interest Reserve Letter of Credit upon the Control Party’s receipt of the written confirmation from the Manager (in the form of an Officer’s Certificate) acting in accordance with the Managing Standard that no Senior Notes Interest Reserve Account Deficiency Amount will exist on the immediately following Weekly Allocation Date (after the allocation of all amounts on such Weekly Allocation Date pursuant to the Priority of Payments).
Section 5.20 Replacement of Ineligible Accounts.
If, at any time, any Management Account or any of the Senior Notes Interest Reserve Account, the Senior Subordinated Notes Interest Reserve Account, the Cash Trap Reserve Account, the Collection Account or any Collection Account Administrative Account shall cease to be an Eligible Account (each, an “Ineligible Account”), the Master Issuer shall (i) within five
(5) Business Days of obtaining knowledge thereof, notify the Control Party and the Trustee thereof and (ii) within ninety (90) days of obtaining knowledge thereof, (A) establish, or cause to be established, a new account that is an Eligible Account in substitution for such Ineligible Account,
Section 5.21 Instructions and Directions.
Any instructions or directions to be provided by the Master Issuer referenced in this Article
V may be given by the Manager on behalf of the Master Issuer and (a) with respect to a Quarterly Calculation Date or Quarterly Payment Date, respectively, shall be contained in the applicable Quarterly Noteholders’ Report for such Quarterly Payment Date and (b) with respect to a Weekly Allocation Date shall be contained in the Weekly Manager’s Certificate for such Weekly Allocation Date. Notwithstanding anything to the contrary contained herein or in any other Related Document, the delivery by the Control Party of an Omitted Payable Sums Certification to the Trustee will be deemed to satisfy any requirements set forth in the Indenture for the Master Issuer (or the Manager on its behalf) to provide written instructions to the Trustee with respect to the movement of funds on the related Weekly Allocation Date to the extent of the information contained therein.
ARTICLE VI DISTRIBUTIONS
Section 6.1 Distributions in General.
ARTICLE VII REPRESENTATIONS AND WARRANTIES
The Master Issuer hereby represents and warrants, for the benefit of the Trustee and the Noteholders, as follows as of the date hereof and as of each Series Closing Date:
Section 7.1 Existence and Power.
Each Securitization Entity (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) is duly qualified to do business as a foreign entity and in good standing under the laws of each jurisdiction where the character of its property, the nature of its business or the performance of its obligations under the Related Documents make such qualification necessary, and (c) has all limited liability company, corporate or other powers and all governmental licenses, authorizations, consents and approvals required (i) to carry on its business as now conducted and (ii) for consummation of the transactions contemplated by the Indenture and the other Related Documents except, in the case of clauses (b) and (c)(i), to the extent the failure to do so would not, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect.
Section 7.2 Company and Governmental Authorization.
The execution, delivery and performance by the Master Issuer of this Base Indenture and any Series Supplement and by the Master Issuer and each other Securitization Entity of the other Related Documents to which it is a party (a) is within such Securitization Entity’s limited liability company, corporate or other powers and has been duly authorized by all necessary limited liability company, corporate or other action, (b) requires no action by or in respect of, or filing with, any Governmental Authority which has not been obtained (other than any actions or filings that may be undertaken after the Closing Date pursuant to the terms of this Base Indenture or any other Related Document) and (c) does not contravene, or constitute a default under, any Requirements of Law with respect to such Securitization Entity or any Contractual Obligation with respect to such Securitization Entity or result in the creation or imposition of any Lien on any property of any Securitization Entity (other than Permitted Liens), except for Liens created by this Base Indenture or the other Related Documents, except in the case of clauses (b) and (c) above, solely with respect to the Contribution Agreements, the violation of which would not reasonably be expected to result in a Material Adverse Effect. This Base Indenture and each of the other Related Documents to which each Securitization Entity is a party has been executed and delivered by a duly Authorized Officer of such Securitization Entity.
Section 7.3 No Consent.
No consent, action by or in respect of, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required for the valid execution and delivery by the Master Issuer of this Base Indenture and any Series Supplement and by the Master Issuer and each other Securitization Entity of any Related Document to which it is a party or for the performance of any of the Securitization Entities’ obligations hereunder or thereunder other than such consents, approvals, authorizations, registrations, declarations or filings
Section 7.4 Binding Effect.
This Base Indenture and each other Related Document to which a Securitization Entity is a party is a legal, valid and binding obligation of each such Securitization Entity enforceable against such Securitization Entity in accordance with its terms (except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
Section 7.5 Litigation.
There is no action, suit, proceeding or investigation pending against or, to the knowledge of the Master Issuer, threatened against or affecting any Securitization Entity or of which any property or assets of such Securitization Entity is the subject before any court or arbitrator or any Governmental Authority that (a) would affect the validity or enforceability of this Base Indenture or any Series Supplement or (b) either individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect.
Section 7.6 No ERISA Plans.
No Securitization Entity has established, maintains, contributes to, or has any liability (contingent or otherwise) in respect of (or has in the past six (6) years established, maintained, contributed to, or had any liability (contingent or otherwise) in respect of) any Single Employer Plan or Multiemployer Plan. No Securitization Entity has any contingent liability with respect to any post-retirement welfare benefits under a Welfare Plan, other than liability (i) for continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or other applicable continuation of coverage laws or (ii) that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Each “employee benefit plan” within the meaning of Section 3(3) of ERISA for which any Securitization Entity has any liability presently complies and has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations, including ERISA and the Code, except for such instances of non-compliance as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to any Plan, other than transactions effected pursuant to a statutory or administrative exemption or such transactions as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except as would not reasonably be expected to result in a Material Adverse Effect, each such “employee benefit plan” within the meaning of Section 3(3) of ERISA for which any Securitization Entity has any liability that is intended to be qualified under Section 401(a) of the Code is the subject of a current favorable determination or opinion letter from the IRS regarding such qualification (or an application for such a letter is currently pending) and nothing has occurred, to the knowledge of the Master Issuer, whether by action or by failure to act, that would cause the loss of such qualification.
Section 7.7 Tax Filings and Expenses.
Each Securitization Entity has filed, or caused to be filed, all United States federal, state and local Tax returns and all other Tax returns which, to the knowledge of the Master Issuer, are required to be filed by Securitization Entity (whether information returns or not), and has paid, or caused to be paid, all Taxes due, if any, pursuant to said returns or pursuant to any assessment
received by any Securitization Entity or any other Taxes otherwise due and payable by it, except such Taxes, if any, as are being contested in good faith and by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP. As of the Closing Date, the Master Issuer is not aware of any material Tax assessments proposed in writing against any Non-Securitization Entity. Except as would not reasonably be expected to result in a Material Adverse Effect, no Tax deficiency has been determined adversely to any Securitization Entity, nor does any Securitization Entity have any knowledge of any Tax deficiencies. Each Securitization Entity has paid all fees and expenses required to be paid by it in connection with the conduct of its business, the maintenance of its existence and its qualification as a foreign entity authorized to do business in each state and each foreign country in which it is required to so qualify, except to the extent that the failure to pay such fees and expenses is not reasonably likely to result in a Material Adverse Effect.
Section 7.8 Disclosure.
No written report, financial statements, certificate or other information furnished in writing (other than projections, budgets, other estimates and general market, industry and economic data) to the Trustee, the Control Party or the Holders by or on behalf of the Securitization Entities pursuant to any provision of the Indenture or any other Related Document, or in connection with or pursuant to any amendment or modification of, or waiver under, the Indenture or any other Related Document (when taken together with all other information furnished by or on behalf of the Non-Securitization Entities to the Trustee or the Holders, as the case may be), contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein not materially misleading in each case when taken as a whole and in the light of the circumstances under which they were made, and the furnishing of the same to the Trustee, the Control Party or the Holders, as the case may be, shall constitute a representation and warranty by the Master Issuer made on the date the same are furnished to the Trustee or the Holders, as the case may be, to the effect specified herein.
Section 7.9 1940 Act.
The Master Issuer is not, and no Securitization Entity is an “investment company” as defined in Section 3(a)(1) of the 1940 Act.
Section 7.10 Regulations T, U and X.
The proceeds of the Notes will not be used to purchase or carry any “margin stock” (as defined or used in the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof) in such a way that could cause the transactions
contemplated by the Related Documents to fail to comply with the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof. No Securitization Entity owns or is engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock.
Section 7.11 Solvency.
Both before and after giving effect to the transactions contemplated by the Indenture and the other Related Documents, (i) the fair value of the assets of the Securitization Entities, when taken as a whole, will exceed their debts and liabilities, including contingent liabilities; (ii) the present fair saleable value of the property of the Securitization Entities, when taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities as such debts and other liabilities become absolute and matured; (iii) the
Securitization Entities, taken as a whole, do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature; and (iv) the Securitization Entities, taken as a whole, will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted after the Closing Date, and no Event of Bankruptcy has occurred with respect to any Securitization Entity.
Section 7.12 Ownership of Equity Interests; Subsidiaries.
Section 7.13 Security Interests.
and Intellectual Property, the Indenture Collateral consists of securities, loans, investments, accounts, commercial tort claims, inventory, equipment, fixtures, health care insurance receivables, chattel paper, money, deposit accounts, instruments, financial assets, documents, investment property, general intangibles, letter of credit rights, or other supporting obligations (in each case, as defined in the UCC). Except in the case of the Intellectual Property, which is subject to Section 8.25(c) and Section 8.25(d) or as described on Schedule 7.13(a), this Base Indenture and the Guarantee and Collateral Agreement constitute a valid and continuing Lien on the Collateral in favor of the Trustee on behalf of and for the benefit of the Secured Parties, which Lien on the Collateral has been perfected, and is prior to all other Liens (other than Permitted Liens), and is enforceable as such as against creditors of and purchasers from the Master Issuer and each Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity, and by an implied covenant of good faith and fair dealing. Except as set forth in Schedule 7.13(a), the Master Issuer and the Guarantors have received all consents and approvals required by the terms of the Collateral to the pledge of the Collateral to the Trustee hereunder and under the Guarantee and Collateral Agreement. The Master Issuer and the
Guarantors have caused, or shall have caused, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the first-priority security interest (subject to Permitted Liens) in the Collateral (other than the Accounts and Intellectual Property) granted to the Trustee hereunder or under the Guarantee and Collateral Agreement within ten (10) days of the date hereof.
Section 7.14 Related Documents.
The Indenture Documents, the Collateral Transaction Documents, the Account Agreements, the Depository Agreements, any Variable Funding Note Purchase Agreement, any Swap Contract, any Series Hedge Agreement and any Enhancement Agreement with respect to each Series of Notes are in full force and effect. There are no outstanding defaults thereunder nor have events occurred which, with the giving of notice, the passage of time or both, would constitute a default thereunder.
Section 7.15 Non-Existence of Other Agreements.
Other than as permitted by Section 8.22, (a) no Securitization Entity is a party to any contract or agreement of any kind or nature and (b) no Securitization Entity is subject to any material obligations or liabilities of any kind or nature in favor of any third party, including, without limitation, Contingent Obligations. No Securitization Entity has engaged in any activities since its formation (other than those incidental to its formation, the authorization and the issuance of Series of Notes, the execution of the Related Documents to which such Securitization Entity is a party and the performance of the activities referred to in or contemplated by such agreements).
Section 7.16 Compliance with Contractual Obligations and Laws.
No Securitization Entity is in violation of (a) its Charter Documents, (b) any Requirement of Law with respect to such Securitization Entity or (c) any Contractual Obligation with respect to such Securitization Entity except, solely with respect to clauses (b) and (c), to the extent such violation would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 7.17 Other Representations.
All representations and warranties of each Securitization Entity made in each other Related Document to which a Securitization Entity is a party are true and correct (i) as of the date hereof or (ii) if made on a future date (A) if qualified as to materiality, in all respects, and (B) if not qualified as to materiality, in all material respects (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct in all respects or in all material respects, as applicable, as of such earlier date), and in each case are repeated herein as though fully set forth herein.
Section 7.18 No Employees.
Notwithstanding any other provision of the Indenture or any Charter Documents of any Securitization Entity to the contrary, no Securitization Entity has any employees.
Section 7.19 Insurance.
The Securitization Entities shall maintain, or cause to be maintained, the insurance coverages (or self-insurance for such risks) described on Schedule 7.19 hereto, in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in
similar industries. All policies of insurance of the Securitization Entities are in full force and effect and the Securitization Entities are in compliance with the terms of such policies in all material respects. None of the Securitization Entities has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to result in a Material Adverse Effect. All such insurance is primary coverage, all premiums therefor due on or before the date hereof have been paid in full, and the terms and conditions thereof are no less favorable to the Securitization Entities than the terms and conditions of insurance maintained by their Affiliates that are not Securitization Entities.
Section 7.20 Environmental Matters.
Section 7.21 Intellectual Property.
the aggregate, reasonably be expected to result in a Material Adverse Effect. All of the issuances, registrations and applications included in the Securitization IP are subsisting, unexpired and have not been abandoned or cancelled in the United States except where such expiration, abandonment or cancellation would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
ARTICLE VIII COVENANTS
Section 8.1 Payment of Notes.
Section 8.2 Maintenance of Office or Agency.
rescission and of any change in the location of any such other office or agency. The Master Issuer hereby designates the applicable Corporate Trust Office as one such office or agency of the Master Issuer.
Section 8.3 Payment and Performance of Obligations.
The Master Issuer shall, and shall cause each other Securitization Entity to, pay and discharge and fully perform, at or before maturity, all of their respective material obligations and liabilities, including, without limitation, Tax liabilities and other governmental claims levied or imposed upon each such Securitization Entity or upon the income, properties or operations of such Securitization Entity, judgments, settlement agreements and all obligations of each Securitization Entity under the Collateral Transaction Documents, except where the same may be contested in good faith by appropriate proceedings (and without derogation from the material obligations of the Master Issuer hereunder and the Guarantors under the Guarantee and Collateral Agreement regarding the protection of the Securitized Assets from Liens (other than Permitted Liens)), and shall maintain, in accordance with GAAP, reserves as appropriate for the accrual of any of the same.
Section 8.4 Maintenance of Existence.
The Master Issuer shall, and shall cause each other Securitization Entity to, maintain its existence as a limited liability company or corporation validly existing and in good standing under the laws of its state of organization and duly qualified as a foreign limited liability company or corporation licensed under the laws of each state in which the failure to so qualify would, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect. The Master Issuer shall, and shall cause each other Securitization Entity (other than any Additional Securitization Entity that is a corporation for U.S. federal income tax purposes) to, be treated as a disregarded entity within the meaning of U.S. Treasury Regulations Section 301.7701-2(c)(2) and the Master Issuer shall not, and shall not permit any other Securitization Entity (other than any Additional Securitization Entity that is a corporation for U.S. federal income tax purposes) to, be classified as an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
Section 8.5 Compliance with Laws.
The Master Issuer shall, and shall cause each other Securitization Entity to, comply in all respects with all Requirements of Law with respect to the Master Issuer or such other Securitization Entity except where such non-compliance would not, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect; provided, however, such non-compliance will not result in a Lien (other than a Permitted Lien) on any of the Securitized Assets or any criminal liability on the part of any Securitization Entity, the Manager or the Trustee.
Section 8.6 Inspection of Property; Books and Records.
The Master Issuer shall, and shall cause each other Securitization Entity to, keep proper books of record and account in which full, true and correct entries in all material respects shall be made of all dealings and transactions, business and activities in accordance with GAAP. The Master Issuer shall, and shall cause each other Securitization Entity to, permit, at reasonable times
upon reasonable notice, the Control Party, the Controlling Class Representative, the Back-Up Manager and the Trustee or any Person appointed by any of them to act as its agent to inspect any of its properties (subject to the rights of tenants under applicable leases and subleases), to examine and make abstracts from any of its books and records and to discuss its affairs, finances and
accounts with its officers, directors, managers, employees and independent certified public accountants, and the reasonable costs and documented out-of-pocket expenses of one such visit and inspection by each of the Control Party, the Controlling Class Representative and the Trustee, or any Person appointed by them, shall be reimbursable as a Securitization Operating Expense per calendar year, with any additional visit or inspection by any such Person being at such Person’s sole cost and expense; provided, however, that during the continuance of a Warm Back-Up Management Trigger Event, a Rapid Amortization Event or an Event of Default, or to the extent expressly required without the instruction of any other party under the terms of any Related Documents, any such Person may visit and conduct such activities at any time and all such visits and activities shall constitute a Securitization Operating Expense. In addition to the foregoing, the Master Issuer shall, and shall cause the other Securitization Entities to, cooperate with all reasonable requests of the Control Party in connection with the performance by the Control Party of its obligations under the Related Documents.
Section 8.7 Actions under the Collateral Transaction Documents and Related
Documents.
and will not permit any Securitization Entity to, take any action which would permit any Non- Securitization Entity or any other Person party to a Collateral Transaction Document to have the right to refuse to perform any of its respective obligations under any of the Collateral Transaction Documents or that would result in the amendment, waiver, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any Collateral Transaction Document.
Section 8.8 Notice of Defaults and Other Events.
The Master Issuer shall give the Trustee, the Control Party, the Manager, the Back-Up Manager, the Controlling Class Representative and each Rating Agency with respect to each Series of Notes Outstanding notice within three (3) Business Days upon becoming aware of (i) any Potential Rapid Amortization Event, (ii) any Rapid Amortization Event, (iii) any Potential Manager Termination Event, (iv) any Manager Termination Event, (v) any Default, (vi) any Event
of Default or (vii) any default under any Collateral Transaction Document, together with an Officer’s Certificate setting forth the details thereof and any action with respect thereto taken or contemplated to be taken by the Master Issuer. The Master Issuer shall, at its expense, promptly provide to the Control Party, the Manager, the Back-Up Manager, the Controlling Class Representative and the Trustee such additional information as the Control Party, the Manager, the Back-Up Manager, the Controlling Class Representative or the Trustee may reasonably request from time to time in connection with the matters so reported, and the actions so taken or contemplated to be taken.
Section 8.9 Notice of Material Proceedings.
Without limiting Section 8.25(b) or Section 8.30, promptly (and in any event within ten
Section 8.10 Further Requests.
The Master Issuer shall, and shall cause each other Securitization Entity to, promptly furnish to the Trustee such other information as, and in such form as, the Trustee may reasonably request in connection with the transactions contemplated hereby or by any Series Supplement.
Section 8.11 Further Assurances.
Assets required to be part of the Collateral; provided, that with respect to applications and registrations for Intellectual Property, this authorization is applicable only with respect to U.S. registrations and applications for Patents, Copyrights and Trademarks.
such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Base Indenture, any indentures supplemental hereto, the Guarantee and Collateral Agreement and any other requisite documents and the execution and filing of any financing statements, continuation statements and amendments or other documents that will, in the opinion of such counsel, be required, subject to clause (c) above, to maintain the perfection of the Lien and security interest of this Base Indenture and the Guarantee and Collateral Agreement under Article 9 of the New York UCC in the Collateral in the United States until September 30 in the following calendar year.
Section 8.12 Liens.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, create, incur, assume or permit to exist any Lien upon any of its property (including the Securitized Assets), other than (i) Liens in favor of the Trustee for the benefit of the Secured Parties and
(ii) other Permitted Liens.
Section 8.13 Other Indebtedness.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any Indebtedness other than (i) Indebtedness hereunder or under the Guarantee and Collateral Agreement or any other Related Document, (ii) any Guarantee by any Securitization Entity of the obligations of any other Securitization Entity, (iii) Indebtedness of a Securitization Entity owed to a Securitization Entity, (iv) any purchase money Indebtedness incurred in order to finance the acquisition, lease or
improvement of equipment in the ordinary course of such Securitization Entity’s business, (v) Indebtedness to a bank or other financial institution arising from cash management services provided by such bank or financial institution to one or more of the Securitization Entities in the ordinary course of business; provided that such Indebtedness is extinguished within ten (10) Business Days of notification to the applicable Securitization Entity of its incurrence; or
Section 8.14 Employee Benefit Plans.
No Securitization Entity, and no member of a Controlled Group that includes a Securitization Entity shall, establish, sponsor, maintain, contribute to, incur any obligation to contribute to or incur any liability in respect of any Plan to the extent the liabilities under such Plan would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 8.15 Mergers.
On and after the Closing Date, the Master Issuer shall not, and shall not permit any other Securitization Entity to, merge or consolidate with or into any other Person (whether by means of a single transaction or a series of related transactions) other than any merger or consolidation of any Securitization Entity with any other Securitization Entity or any merger or consolidation of
any Securitization Entity with any other entity to which the Control Party has given prior written consent.
Section 8.16 Asset Dispositions.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, sell, transfer, lease, license, liquidate or otherwise dispose of any of its property (whether by means of a single transaction or a series of related transactions), including any Equity Interests of any other Securitization Entity, except in the case of the following (each, a “Permitted Asset Disposition”):
8.12 and distributions permitted under Section 8.18;
provided, it being understood that any delivery to the Trustee of any Note, at any time and in any amount, by the Manager or any Securitization Entity, together with any cancellation thereof pursuant to Section 2.14, shall be deemed to be a Permitted Asset Disposition.
All amounts received by any Securitization Entity upon a Permitted Asset Disposition pursuant to clauses (a) – (k) and any amounts of up to $5,000,000 in the aggregate during any fiscal year pursuant to clauses (l) and (m) of the definition of “Permitted Asset Disposition” shall be treated as Collections (collectively, “Asset Disposition Collections”) with respect to the Quarterly Collection Period in which such amounts are received and not as Asset Disposition
Proceeds.
Upon any sale, transfer, lease, license, liquidation or other disposition of any property by any Securitization Entity permitted by this Section 8.16, all Liens with respect to such disposed property created in favor of the Trustee for the benefit of the Secured Parties under this Base Indenture and the other Related Documents shall be automatically released, and the Trustee, upon written request of the Master Issuer, at the written direction of the Control Party (who shall be entitled to, and may conclusively rely upon, an Officer’s Certificate of the Master Issuer certifying that all conditions precedent to such release have been satisfied), shall provide evidence of such release as set forth in Section 14.17.
Section 8.17 Acquisition of Assets.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, acquire, by long-term or operating lease or otherwise, any property (i) if such acquisition when effected on
behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement or (ii) that is a lease, sublease, license (other than the IP License Agreements, licenses of Intellectual Property obtained in the ordinary course of business, or to the extent existing as of the Closing Date, licenses of Excluded IP and/or Excepted Securitization IP Assets, or permitted sublicenses under any of the foregoing) or other contract or permit, if the grant of a Lien or security interest in any of the Securitization Entities’ right, title and interest in, to or under such lease, sublease, license, contract or permit in a manner contemplated by the Base Indenture and the Guarantee and Collateral Agreement (a) would be prohibited by the terms of such lease, sublease, license, contract or permit, (b) would constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of the applicable Securitization Entity therein or (c) would otherwise result in a breach thereof or the termination or a right of termination thereof, except to the extent that any such prohibition, breach, termination or right of termination is rendered ineffective pursuant to the UCC or any other applicable law. Unless prohibited by a Series Supplement, the Master Issuer may purchase Notes on the open market or accept as a capital contribution from a direct or indirect parent of the Master Issuer one or more Notes, and such Notes may be cancelled in accordance with Section 2.14.
Section 8.18 Dividends, Officers’ Compensation, etc.
The Master Issuer will not declare or pay any distributions on any of its limited liability company interests; provided, however, that so long as no Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default has occurred and is continuing with respect to any Series of Notes Outstanding or would result therefrom, the Master Issuer may declare and pay distributions to the extent permitted under Section 18-607 of the Delaware Limited Liability Company Act and the Master Issuer’s Charter Documents. The Master Issuer shall not, and shall not permit any other Securitization Entity to, redeem, purchase, retire or otherwise acquire for value any Equity Interest in or issued by such Securitization Entity or set aside or otherwise segregate any amounts for any such purpose except as expressly permitted by the Indenture or as consented to by the Control Party. The Master Issuer may draw, repay and redraw on Commitments with respect to any Series of Class A-1 Notes for general corporate purposes of the Securitization Entities and the Non-Securitization Entities, including to fund any acquisition by any Securitization Entity or Non-Securitization Entity or any dividend, distribution or share repurchase by any Securitization Entity or Non-Securitization Entity. The Master Issuer may not designate equity contributions funded with the proceeds of such draw as Retained Collections.
Section 8.19 Legal Name, Location Under Section 9-301 or 9-307.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, change its location (within the meaning of Section 9-301 or 9-307 of the applicable UCC) or its legal name without at least thirty (30) days’ prior written notice to the Trustee, the Control Party, the Manager, the Back-Up Manager and each Rating Agency with respect to each Series of Notes Outstanding. In the event that the Master Issuer or other Securitization Entity desires to so change its location or change its legal name, the Master Issuer will, or will cause such other Securitization Entity to, make any required filings and prior to actually changing its location or its legal name the Master Issuer will, or will cause such other Securitization Entity to, deliver to the Trustee and the Control Party (i) an Officer’s Certificate and an Opinion of Counsel confirming that all required filings have been made, subject to Section 8.11(c), to continue the perfected interest or to record evidence
of such security interest, as applicable, of the Trustee on behalf of the Secured Parties in the Collateral under Article 9 of the applicable UCC in respect of the new location or new legal name of the Master Issuer or other Securitization Entity and (ii) copies of all such required filings with the filing information duly noted thereon by the office in which such filings were made.
Section 8.20 Charter Documents.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, amend, or consent to the amendment of, any of its Charter Documents to which it is a party as a member or shareholder unless, prior to such amendment, the Control Party shall have consented thereto and the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied with respect to such amendment; provided, however, the Master Issuer and the other Securitization Entities shall be permitted to amend their Charter Documents without having to meet the Rating Agency Condition to cure any ambiguity, defect or inconsistency therein or if such amendments would not reasonably be deemed to be disadvantageous to any Holder in the reasonable judgment of the Control Party. The Control Party may rely on an Officer’s Certificate to make such determination. The Master Issuer shall provide written notice to each Rating Agency (with a copy to the Control Party) of any amendment of any Charter Document of any Securitization Entity.
Section 8.21 Investments.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, make, incur, or suffer to exist any loan, advance, extension of credit or other Investment if such Investment when made on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement, other than (a) Investments in the Accounts and Eligible Investments, (b) Investments in any other Securitization Entity, (c) loans or advances by the Franchisor or any Additional Securitization Entity to any Non-Securitization Entity in accordance with Section 8.24(a)(ii) using funds on deposit in the Franchisor Capital Account, (d) guarantees of obligations of any Non-Securitization Entity provided in the form of letters of credit issued pursuant to a Variable Funding Note Purchase Agreement, (e) guarantees with respect to operating leases (or obligations that would have been accounted for as operating leases under GAAP as in effect on the Closing Date), or (f) guarantees for the benefit of Franchisees of Indebtedness in an aggregate principal amount at any time outstanding of up to the greater of (x)
$20,000,000 and (y) 5.0% of the Net Cash Flow for the preceding four (4) Quarterly Collection Periods most recently ended as of such date and for which financial statements have been prepared.
Section 8.22 No Other Agreements.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, enter into or be a party to any agreement or instrument (other than any Related Document, any Collateral Business Document, any other document permitted by a Series Supplement, Variable Funding
Note Purchase Agreement or the Related Documents, as the same may be amended, supplemented or otherwise modified from time to time, any documents related to any Enhancement (subject to Section 8.32) or any Series Hedge Agreement (subject to Section 8.33), any documents relating to the transactions described in the proviso to Section 8.24(a)(vi) or any documents or agreements
incidental thereto) if such agreement when effected on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement.
Section 8.23 Other Business.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, engage in any business or enterprise or enter into any transaction other than the incurrence and payment of ordinary course operating expenses, the issuing and selling of the Notes, entry into and performance of the Collateral Business Documents and other agreements permitted pursuant to Section 8.22 and other activities related to or incidental to any of the foregoing or any other transaction which when effected on behalf of any Securitization Entity by the Manager would not constitute a breach by the Manager of the Management Agreement.
Section 8.24 Maintenance of Separate Existence.
Section 8.25 Covenants Regarding the Securitization IP.
Manager of the Management Agreement if such action were taken or omitted by the Manager on behalf of any Securitization Entity.
all commercially reasonable and appropriate actions, at its expense, to protect or enforce the Securitization IP, including, if commercially reasonable, suing for infringement, misappropriation, dilution or other violation of, and seeking an injunction (including, if appropriate, temporary and/or preliminary injunctive relief) against such infringement, misappropriation, dilution or violation, unless the failure to take such actions on behalf of the Franchisor by the Manager would not constitute a breach by the Manager of the Management Agreement; provided that if the Franchisor decides not to take any action with respect to an infringement, misappropriation, dilution or violation that would reasonably be expected to result in a Material Adverse Effect, the Franchisor will deliver written notice to the Trustee, the Manager, the Back-Up Manager and the Control Party setting forth in reasonable detail the basis for its decision not to act, and none of the Manager, the
Trustee, the Back-Up Manager or the Control Party will be required to take any actions to protect or enforce the Securitization IP against such infringement, misappropriation, dilution or violation; provided, further, that the Manager will be required to act if failure to do so would constitute a breach of the Managing Standard.
Section 8.26 1940 Act.
The Master Issuer shall take or omit to take action as necessary in order to ensure the Master Issuer is not an “investment company” as set forth in Section 3(a)(1) of the 1940 Act, as such section may be amended from time to time.
Section 8.27 Real Property.
The Master Issuer shall not, and shall not permit any other Securitization Entity to, enter into any lease of real property (other than in connection with any Permitted Asset Disposition). The Master Issuer shall not, and shall not permit any other Securitization Entity to, acquire any fee interest in real property.
Section 8.28 No Employees.
The Master Issuer and the other Securitization Entities shall have no employees.
Section 8.29 Insurance.
The Master Issuer shall cause the Manager to list each Securitization Entity as an “additional insured” or “loss payee” on any insurance maintained by the Manager for the benefit of each such Securitization Entity pursuant to the Management Agreement.
Section 8.30 Litigation.
So long as Holdco is not then subject to Section 13 or 15(d) of the 1934 Act, the Master Issuer shall, on each Quarterly Payment Date, provide a written report to the Control Party, the Manager, the Back-Up Manager and each Rating Agency for each Series of Notes Outstanding that sets forth all outstanding litigation, arbitration or other proceedings against any Non- Securitization Entity that would have been required to be disclosed in Holdco’s annual reports, quarterly reports and other public filings which Holdco would have been required to file with the SEC pursuant to Section 13 or 15(d) of the 1934 Act if Holdco were subject to such Sections.
Section 8.31 Environmental.
The Master Issuer shall, and shall cause each other Securitization Entity to, promptly notify the Control Party, the Manager, the Back-Up Manager, the Trustee and each Rating Agency for each Series of Notes Outstanding, in writing, upon receipt of any written notice of which any
Securitization Entity becomes aware from any source (including but not limited to a governmental entity) relating in any way to any possible Material Adverse Effect of any Securitization Entity pursuant to any Environmental Law. In addition, other than exceptions to any of the following that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Master Issuer shall, and shall cause each other Securitization Entity to (i) comply with all applicable Environmental Laws, (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them and obtain all Environmental Permits for any intended operations when such Environmental Permits are required and (iii) comply with all of their Environmental Permits.
Section 8.32 Enhancements. No Enhancement shall be provided in respect of any Series of Notes, nor will any Enhancement Provider have any rights hereunder, as third-party beneficiary or otherwise, unless the Control Party has provided its prior written consent to such Enhancement, such consent not to be unreasonably withheld.
Section 8.33 Series Hedge Agreements; Derivatives Generally.
Section 8.34 Additional Securitization Entity.
Section 8.35 Subordinated Notes Repayments. The Master Issuer shall not repay any Subordinated Notes or Senior Subordinated Notes after the Series Anticipated Repayment Date with respect to any Series of Notes Outstanding with amounts obtained by the Master Issuer from the Holding Company Guarantor, EWC Ventures or any other direct or indirect owner of Equity Interests of the Master Issuer in the form of any capital contributions or any portion of any Residual Amounts distributed to the Master Issuer pursuant to the Priority of Payments unless and until all Senior Notes Outstanding have been paid in full and are no longer Outstanding.
Section 8.36 Tax Lien Reserve Amount. In the event a Tax Lien Reserve Amount is contributed to the Holding Company Guarantor, such amount shall be contributed by the Holding Company Guarantor to the Master Issuer and held in a collateral deposit account established with or otherwise controlled by the Trustee, in which the Trustee shall have a security interest. The Tax Lien Reserve Amount may only be released from such account as follows: (a) the Master Issuer, or the Manager on behalf of the Master Issuer, delivers (i) to the Control Party, the Back-Up Manager and the Controlling Class Representative evidence reasonably satisfactory to each such Person that the Lien for which such Tax Lien Reserve Amount was established has been released by the IRS and the Master Issuer (or the Manager on its behalf) and (ii) a written instruction to the Trustee to withdraw and pay all of such Tax Lien Reserve Amount pursuant to the Manager’s written instructions; (b) the Master Issuer, or the Manager on behalf of the Master Issuer, delivers written instructions to the Trustee to withdraw and pay all or a portion of such Tax Lien Reserve Amount to the IRS on behalf of the Securitization Entities; provided that the Master Issuer shall deliver, or cause to be delivered, prior written notice of any such written instruction to the Control Party; or (c) the Control Party (acting at the direction of the Controlling Class Representative) instructs the Trustee in writing to withdraw and pay all or a portion of such Tax Lien Reserve
Amount to the IRS (i) upon the occurrence and during the continuation of an Event of Default or (ii) upon receipt of written notice from any Securitization Entity stating that the IRS intends to execute on the Lien for which such Tax Lien Reserve Amount was established in respect of any assets of any Securitization Entity; provided that the Control Party shall deliver a copy of any such written instruction to EWC Ventures.
Section 8.37 Bankruptcy Proceedings. The Master Issuer shall, and shall cause the other Securitization Entities to, promptly object to the institution of any bankruptcy proceeding against it and to take all necessary or advisable steps to cause the dismissal of any such proceeding (including, without limiting the generality of the foregoing, to timely file an answer and any other appropriate pleading objecting to (i) the institution of any proceeding to have any Securitization Entity, as the case may be, adjudicated as bankrupt or Insolvent or (ii) the filing of any petition seeking relief, reorganization, arrangement, adjustment or composition
or in respect of any Securitization Entity, as the case may be, under applicable bankruptcy law or any other applicable law).
ARTICLE IX REMEDIES
Section 9.1 Rapid Amortization Events.
The Notes shall be subject to rapid amortization, following the occurrence of any of the following events as declared by the Control Party (at the direction of the Controlling Class Representative) by written notice to the Master Issuer (with a copy to the Back-Up Manager and the Trustee) (each, a “Rapid Amortization Event”); provided that a Rapid Amortization Event described in clause (e) below will occur automatically without any declaration by the Control Party unless the Control Party and 100% of the Noteholders have agreed to waive such event in accordance with Section 9.7:
For the avoidance of doubt, any Scheduled Principal Payments set forth in any Series Supplement shall continue to be made when due and payable subsequent to the occurrence of a
Rapid Amortization Event.
Section 9.2 Events of Default.
If any one of the following events shall occur (each an “Event of Default”):
(ii) such Indemnification Amount has been deposited into the Collection Account;
Entity;
$25,000,000 (to the extent not covered by independent third-party insurance as to which the issuer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and does not dispute coverage), and either (i) enforcement proceedings are commenced by any creditor upon such judgment or order or (ii) there is any period of thirty (30) consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, will not be in effect;
$10,000,000 in favor of the PBGC or a Plan arises on the assets of any Securitization Entity and is not discharged within thirty (30) days thereafter, (iv) a Reportable Event occurs with respect to, or proceedings are commenced in writing to have a trustee appointed, or a trustee is appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings in writing or appointment of a trustee is likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA, (v) any Single Employer Plan terminates for purposes of Title IV of ERISA or (vi) any Securitization Entity incurs, or is likely to incur, any liability in connection with a complete or partial withdrawal from, or the Insolvency or termination of, a Multiemployer Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to result in a Material Adverse Effect on any Securitization Entity;
(60) days, unless (i) Holdco or a Subsidiary thereof has provided evidence that payment to satisfy the full amount of the asserted liability has been provided to the IRS, and the IRS has released such asserted Lien within sixty (60) days of such payment, or (ii) such Lien or the asserted liability is being contested in good faith and Holdco or a Subsidiary thereof has contributed to the Holding Company Guarantor the Tax Lien Reserve Amount, which such Tax Lien Reserve Amount is set aside and remitted to a collateral deposit account as provided in Section 8.36; or
then (i) in the case of any event described in each clause above (except for clause (d) thereof) that is continuing the Trustee, at the direction of the Control Party (at the direction of the Controlling Class Representative) and on behalf of the Noteholders, by written notice to the Master Issuer (unless no notice is required hereunder), shall declare the Notes of all Series to be immediately due and payable, and upon any such declaration the unpaid principal amount of the Notes of all Series, together with accrued and unpaid interest thereon through the date of acceleration, and all other amounts due to the Noteholders and the other Secured Parties under the Indenture Documents shall become immediately due and payable or (ii) in the case of any event described in clause (d) above, the unpaid principal amount of the Notes of all Series, together with interest accrued but
unpaid thereon through the date of acceleration, and all other amounts due to the Noteholders and the other Secured Parties under the Indenture Documents, shall immediately and without further act become due and payable. Promptly following the Trustee’s receipt of written notice hereunder of any Event of Default, the Trustee shall send a copy thereof to the Master Issuer, the Control Party, each Rating Agency for each Series of Notes Outstanding, the Controlling Class Representative, the Manager, the Back-Up Manager, each Noteholder and each other Secured Party.
If any Securitization Entity obtains Actual Knowledge that a Default or an Event of Default has occurred and is continuing, the Master Issuer shall promptly notify the Trustee, the Back-Up Manager and the Control Party.
At any time after such a declaration of acceleration of maturity has been made relating to the Notes and before a judgment or decree for payment of the money due has been obtained by the Trustee, as hereinafter provided in this Article IX, the Control Party (acting at the direction of the Controlling Class Representative), by written notice to the Master Issuer and to the Trustee, may rescind and annul such declaration and its consequences, if (i) the Master Issuer has paid or deposited with the Trustee a sum sufficient to pay (a) all overdue installments of interest and principal on the Notes (excluding principal amounts due solely as a result of the acceleration), and
Section 9.3 Rights of the Control Party and Trustee upon Event of Default.
(i) default is made in the payment of any interest on any Series of Notes Outstanding when the same becomes due and payable, (ii) the Notes are accelerated following the occurrence of an Event of Default or (iii) default is made in the payment of the principal of, or premium, if any, on any Series of Notes Outstanding when due and payable, the Master Issuer shall, to the extent of funds available, upon demand of the Trustee, at the direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative), pay to the Trustee, for the benefit of the Noteholders, the whole amount then due and payable on the Notes for principal, premium, if any, and interest, and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest, at the applicable Note Rate and any default rate, as applicable, and in addition thereto such further amount as shall be sufficient to cover costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.
Section 9.4 Waiver of Appraisal, Valuation, Stay and Right to Marshaling. To the extent it may lawfully do so, the Master Issuer for itself and for any Person who may claim through or under it hereby:
applicable law or (iii) the putting of the purchaser or purchasers thereof into possession of such property immediately after the sale thereof;
Section 9.5 Limited Recourse.
Notwithstanding any other provision of the Indenture, the Notes or any other Related Document or otherwise, the liability of the Securitization Entities to the Noteholders and any other Secured Parties under or in relation to the Indenture, the Notes or any other Related Document or otherwise, is limited in recourse to the assets of the Securitization Entities. Following the proceeds of such assets having been applied in accordance with the terms hereof, none of the Noteholders or any other Secured Parties shall be entitled to take any further steps against any Securitization Entity to recover any sums due but still unpaid hereunder, under the Notes or under any of the other agreements or documents described in this Section 9.5, all claims in respect of which shall be extinguished.
Section 9.6 Optional Preservation of the Securitized Assets.
If the maturity of the Outstanding Notes of each Series has been accelerated pursuant to Section 9.2 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Trustee, at the direction of the Control Party (acting at the direction of the Controlling Class Representative), shall elect to maintain possession of such portion, if any, of the Collateral and/or Securitized Assets (to the extent permitted by applicable law) as the Control Party (acting at the direction of the Controlling Class Representative) shall in its discretion determine.
Section 9.7 Waiver of Past Events.
Prior to the declaration of the acceleration of the maturity of each Series of Notes Outstanding as provided in Section 9.2 and subject to Section 13.2, any existing Default or Event of Default described in any clause of Section 9.2 (except clause (d) thereof) and its consequences, may be waived (x) by the Control Party (acting at the direction of the Controlling Class Representative) or (y) by 66.67% of the Noteholders, in each case, by notice to the Trustee, the Rating Agency (with a copy to the Back-Up Manager) and, in the case of a waiver by 66.67% of the Noteholders, the Control Party; provided, however, that before any waiver may be effective, the Trustee and the Control Party must have received any reimbursement then due or payable in respect of unreimbursed amounts then due to the Control Party or the Trustee hereunder or under
the Related Documents; provided, further, that the Control Party shall provide written notice of any such waiver to each Rating Agency for each Series of Notes Outstanding. Upon any such waiver, such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. A Default or an Event of Default described in Section 9.2(d) shall not be subject to waiver without the consent of the Control Party (acting at the direction of the Controlling Class Representative) and each Noteholder. Subject to Section 13.2, the Control Party (acting at the direction of the Controlling Class Representative, or if no Controlling Class Representative has been elected, a Majority of Controlling Class Members), by notice to the Trustee, the Manager and each Rating Agency for each Series of Notes Outstanding (with a copy to the Back-Up Manager), may waive any existing Potential Rapid Amortization Event or any existing Rapid Amortization Event; provided however, that a Rapid Amortization Event described in Section 9.1(e) relating to a particular Series, Class or Tranche of Notes shall not be permitted to be waived by any party unless each affected Holder has consented to such waiver in writing.
Section 9.8 Control by the Control Party.
Notwithstanding any other provision hereof, the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative) may cause the institution of and direct the time, method and place of conducting any proceeding in respect of any enforcement of the Collateral or conducting any proceeding in respect of any enforcement of Liens on the Collateral or conducting any proceeding for any remedy available to the Control Party and to direct the exercise of any trust or power conferred on the Control Party. If there is no Control Party, the Majority of the Controlling Class Members will have the right to direct the Trustee to institute, and direct the time, method and place of conducting any proceeding in respect of any enforcement of the Collateral or conducting any proceeding in respect of any enforcement of Liens on the Collateral and other rights and remedies against the other Securitized Assets (to the extent permitted by applicable law) or conducting any proceeding for any contractual or legal remedy available to the Trustee or exercise any trust or power conferred on the Trustee; provided that:
provided further that each of the Control Party (subject to Section 4.4 of the Control Party Agreement) and the Trustee (subject to Section 10.1 of this Base Indenture) need not take any action that it determines might involve it in liability unless it has received an indemnity for such liability as provided herein. The Trustee shall take no action referred to in this Section 9.8 unless instructed to do so by the Control Party (at the direction of the Controlling Class Representative) or, if there is no Control Party, the Majority of the Controlling Class Members.
Section 9.9 Limitation on Suits.
Any other provision of the Indenture to the contrary notwithstanding, a Noteholder may pursue a remedy with respect to the Indenture or any other Related Document only if:
A Noteholder may not use the Indenture or any other Related Document to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder.
Section 9.10 Unconditional Rights of Noteholders to Receive Payment.
Notwithstanding any other provision of the Indenture, the right of any Holder of a Note to receive payment of principal of, and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder of the Note.
Section 9.11 The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel), the Noteholders and any other Secured Party (as applicable) allowed in any judicial
proceedings relative to the Master Issuer (or any other obligor upon the Notes), its creditors or its property, and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claim and any custodian in any such judicial
proceeding is hereby authorized by each Noteholder and each other Secured Party to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders or any other Secured Party, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money and other properties which any of the Noteholders or any other Secured Party may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder or any other Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Noteholder or any other Secured Party, or to authorize the Trustee to vote in respect of the claim of any Noteholder or any other Secured Party in any such proceeding.
Section 9.12 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of any undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 9.12 does not apply to a suit by the Trustee (or by the Control Party for any contractual or legal remedy available to the Trustee), a suit by a Noteholder pursuant to Section 9.9 or a suit by Noteholders of more than 10% of the Aggregate Outstanding Principal Amount of all Series of Notes.
Section 9.13 Restoration of Rights and Remedies.
If the Trustee, any Noteholder or any other Secured Party has instituted any Proceeding to enforce any right or remedy under the Indenture or any other Related Document and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Trustee or to such Noteholder or other Secured Party, then and in every such case the Trustee and the Noteholders and any such other Secured Party shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee, the Noteholders and the other Secured Parties shall continue as though no such Proceeding had been instituted.
Section 9.14 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes or any other Secured Party is intended to be exclusive of any other right or remedy, and every right or remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given under the Indenture or any other Related Document or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy under the Indenture or any other Related Document, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 9.15 Delay or Omission Not Waiver.
No delay or omission of the Trustee, the Control Party, the Controlling Class Representative, any Holder of any Note or any other Secured Party to exercise any right or remedy accruing upon any Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article IX or by law to the Trustee, the Control Party, the Controlling Class Representative, the Holders of Notes or any other Secured Party may be exercised from time to time to the extent not inconsistent with the Indenture, and as often as may be deemed expedient, by the Trustee, the Control Party, the Controlling Class Representative, the Holders of Notes or any other Secured Party, as the case may be.
Section 9.16 Waiver of Stay or Extension Laws.
The Master Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of the Indenture or any other Related Document; and the Master Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantages of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, the Control Party or the Controlling Class Representative, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE X THE TRUSTEE
Section 10.1 Duties of the Trustee.
noteholders, as applicable, in connection with any Event of Default, Rapid Amortization Event, a Manager Termination Event or a Control Party Termination Event or for acting or failing to act due to any direction or lack of direction from the Control Party, the Controlling Class Representative or the requisite percentage of the Controlling Class Members or Noteholders. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s gross negligence, bad faith or willful misconduct except as provided in Section
10.1(c). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement opinion, report, document, order or other instrument furnished by the Master Issuer under the Indenture.
Event, Potential Manager Termination Event, Advance Funding Reserve Release Event, Warm Back-Up Management Trigger Event or Control Party Termination Event or the commencement and continuation of a Cash Trapping Period until such time as a Trust Officer shall have Actual Knowledge or have received written notice thereof. In the absence of such Actual Knowledge or receipt of such notice, the Trustee may conclusively assume that no such event has occurred or is continuing.
Control Party, the Controlling Class Representative or the Holders of the requisite percentage of Notes, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture, any other circumstances in which direction is required or permitted by the terms of the Indenture or applicable law.
(ii) to see to any insurance, (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any Tax, assessment or other governmental charge or any Lien or encumbrance of any kind or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party or the Back-Up Manager delivered to the Trustee pursuant to this Base Indenture or any other Related Document believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties.
Section 10.2 Rights of the Trustee. Except as otherwise provided by Section
10.1:
refraining from acting based upon any resolution, Officer’s Certificate, Opinion of Counsel, certificate, instrument, report, consent, order, document or other paper reasonably believed by it to be genuine and to have been signed by or presented by the proper Person.
mail will be encrypted. The recipient of the email communication will be required to complete a one-time registration process.
Section 10.3 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Securitization Entities or an Affiliate of the Securitization
Entities with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
Section 10.4 Notice of Events of Default and Defaults.
If an Event of Default, a Default, a Rapid Amortization Event or a Potential Rapid Amortization Event occurs and is continuing of which a Trust Officer has Actual Knowledge, or written notice of the existence thereof has been delivered to a Trust Officer, the Trustee shall promptly provide the Noteholders, the Control Party, the Manager, the Back-Up Manager, the Master Issuer, any Class A-1 Administrative Agent and each Rating Agency for each Series of Notes Outstanding with notice of such Event of Default, Default, Rapid Amortization Event or Potential Rapid Amortization Event, to the extent that the Notes of such Series are Book-Entry Notes, by telephone and facsimile and otherwise by first class mail.
Section 10.5 Compensation and Indemnity.
however, that the Master Issuer shall not indemnify the Trustee, any predecessor Trustee or their respective directors, officers, employees or agents if such acts, omissions or alleged acts or omissions constitute willful misconduct, bad faith or negligence by the Trustee or such predecessor Trustee, as the case may be.
Section 10.6 Replacement of the Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Master Issuer shall promptly, with the prior written consent of the Control Party (acting at the direction of the Controlling Class Representative, or, if there is no Controlling Class Representative at such time, a Majority of Controlling Class Members), appoint a successor Trustee. Within one (1) year after the successor Trustee takes office, the Majority of Controlling Class Members (with the prior written consent of the Control Party) may appoint a successor Trustee to replace the successor Trustee appointed by the Master Issuer.
Section 10.7 Successor Trustee by Merger, etc.
Subject to Section 10.8, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided that written notice of such consolidation, merger or conversion shall be provided to the Master Issuer, the Control Party, the Noteholders and each Class A-1 Administrative Agent (with a copy to the Back-Up Manager); provided, further, that the resulting or successor corporation is eligible to be a Trustee under Section 10.8.
Section 10.8 Eligibility Disqualification.
Section 10.9 Appointment of Co-Trustee or Separate Trustee.
requirements of any jurisdiction in which any part of the Securitized Assets may at the time be located, the Trustee shall have the power upon notice to the Control Party, the Master Issuer and each Class A-1 Administrative Agent (with a copy of such notice provided to the Back-Up Manager) and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Securitized Assets, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders and the other Secured Parties, such title to the Collateral (or other rights in and to the Securitized Assets), or any part thereof, and, subject to the other provisions of this Section 10.9, such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable. Any co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 10.8 or shall be otherwise acceptable to the Control Party. No notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 10.6. No co-trustee shall be appointed without the consent of the Control Party and the Master Issuer unless such appointment is required as a matter of state law or to enable the Trustee to perform its functions hereunder.
Related Documents to which the Trustee is a party, specifically including every provision of this Base Indenture, any Series Supplement, or any other Related Document which the Trustee is a party relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee and a copy thereof given to the Control Party
and the Master Issuer.
Section 10.10 Representations and Warranties of Trustee.
The Trustee represents and warrants to the Master Issuer and the Holders that:
ARTICLE XI
CONTROLLING CLASS REPRESENTATIVE AND CONTROL PARTY
Section 11.1 Controlling Class Representative.
Section 11.2 Resignation or Removal of the Controlling Class Representative. The Controlling Class Representative may at any time resign as such by giving written notice to the Trustee, the Back-Up Manager, the Control Party and to each Noteholder of the Controlling Class. As of any Record Date, a Majority of Controlling Class Members shall be entitled to remove any existing Controlling Class Representative by giving written notice to the Trustee, the Back- Up Manager, the Control Party and such existing Controlling Class Representative. No resignation or removal of the Controlling Class Representative shall be effective until a successor Controlling Class Representative has been appointed pursuant to Section 11.1 or until the end of the CCR Election Period (or, if no CCR Election Period has occurred after a CCR Nomination Period, until the end of the related CCR Nomination Period) following such resignation or removal; provided that any Controlling Class Representative that has been removed pursuant to this Section 11.2 may subsequently be nominated as a CCR Candidate pursuant to Section 11.1 (provided that such Controlling Class Representative candidate satisfies the requirements of this Base Indenture) and appointed as Controlling Class Representative. In addition to the foregoing, within two
the Trustee shall notify the Control Party, the Back-Up Manager and the parties to this Base Indenture of such event.
Section 11.3 Expenses and Liabilities of the Controlling Class Representative.
Section 11.4 Control Party.
employees, agents or partners, to any material claim, suit or liability, or (iii) materially expand the scope of the Control Party’s responsibilities under the Control Party Agreement or the Trustee’s responsibility under this Indenture, the Notes and the other Related Documents. The Trustee and the Control Party shall not be required to follow any such advice, direction or objection. For the avoidance of doubt, the rights, privileges, protections, indemnities, immunities and benefits afforded to the Control Party under the Control Party Agreement shall apply for purposes of all actions taken by it pursuant to the terms of the Related Documents.
Party;
(iv) No Control Party Termination Events will apply to the Transition Control Party;
(v) The Transition Control Party will not be eligible to be the Workout Specialist or Liquidation Specialist (each as defined in the Control Party Agreement), or any other capacity in which the Control Party is entitled to fees for administering, managing or otherwise dealing with the Collateral;
(vi) If the Transition Control Party is the Majority of Controlling Class Members, such Majority of Controlling Class Members will not be required to be directed by the Controlling Class Representative with respect to any Control Party Transition Period Actions; and
(vii) The Trustee will act as directed by the Transition Control Party in the same manner as if such Transition Control Party were the Control Party in this Base Indenture and the other Related Documents; provided, that the Trustee will not be (A) liable or responsible for any losses, damages, fines, forfeitures, liabilities, obligations or penalties due to any action or inaction, any delay in obtaining any such direction or any increases in Securitization Operation Expenses as a result thereof and (B) required to act upon any direction, waiver, consent, approval or other action that exposes the Trustee to liability or is contrary to the law or the terms of the Indenture or any
Related Document.
Section 11.5 Note Owner List.
transmit it in accordance with and subject to the terms hereof and to give notice of such request and transmission to the Master Issuer, the Control Party and the Controlling Class Representative.
ARTICLE XII DISCHARGE OF INDENTURE
Section 12.1 Termination of the Master Issuer’s and Guarantors’ Obligations.
Upon satisfaction of such conditions, the Indenture, the Guarantee and Collateral Agreement and each of the Related Documents shall cease to be of further effect (other than any provisions which by their express terms survive the termination thereof); except that (i) the rights and obligations of the Trustee hereunder, including, without limitation, the Trustee’s rights to compensation and indemnity under Section 10.5, and the Guarantor’s guaranty thereof, (ii) the Trustee’s and the Paying Agent’s obligations under Section 12.2 and 12.3, (iii) the Noteholders’ and the Trustee’s obligations under Section 14.13, (iv) this Section 12.1(b) and (v) the Noteholders’ rights to registration of transfer and exchange under Section 2.8 and to replacement or substitution of mutilated, destroyed, lost or stolen Notes under Section 2.10(a) shall survive. The Trustee, on demand of the Securitization Entities, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture and the Guarantee and Collateral Agreement.
the Master Issuer solely with respect to the Defeased Series to the applicable prepayment date, redemption date or maturity date, as the case may be, and to pay other sums payable by them under the Base Indenture, the Control Party Agreement, any Advance Funding Agreement, each other Related Document and each Series Hedge Agreement with respect to such Defeased Series;
provided, any Government Securities must provide for the scheduled payment of all
principal and interest thereon not later than the Business Day prior to the applicable prepayment date, redemption date or maturity date, as the case may be, and the Trustee must have been irrevocably instructed to apply such funds to the payment of principal, premiums, make-whole prepayment premiums and interest with respect to the Notes of such Series and such other sums;
Upon satisfaction of such conditions, the Indenture, the Guarantee and Collateral Agreement and each of the Related Documents shall cease to be of further effect (other than any provisions which by their express terms survive the termination thereof) with respect to such Defeased Series, the Master Issuer and the Guarantors shall be deemed to have paid and been discharged from their Series Obligations with respect to such Defeased Series and thereafter such Defeased Series shall be deemed to be “Outstanding” only for purposes of (1) the Trustee’s and the Paying Agent’s obligations under Section 12.2 and Section 12.3, (2) the Holders’ and the Trustee’s obligations under Section 14.13 and (3) the Noteholders’ rights to registration of transfer and exchange under Section 2.8 and to replacement or substitution of mutilated, destroyed, lost or stolen Notes under Section 2.10(a) (or, in each case, to de-registration and/or registration of Uncertificated Notes). The Trustee, on demand of the Securitization Entities, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture and the Guarantee and Collateral Agreement of such Series Obligations.
Section 12.2 Application of Trust Money.
The Trustee or a trustee satisfactory to the Control Party, the Trustee and the Master Issuer shall hold in trust money or Government Securities deposited with it pursuant to Section
Section 12.3 Repayment to the Master Issuer.
or interest that remains unclaimed for two (2) years after the date upon which such payment shall have become due.
Section 12.4 Reinstatement.
If the Trustee is unable to apply any funds received under this Article XII by reason of any proceeding, order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Master Issuer’s obligations under the Indenture or the other Indenture Documents and in respect of the Notes and the Guarantors’ obligations under the Guarantee and Collateral Agreement shall be revived and reinstated as though no deposit had occurred, until such time as the Trustee is permitted to apply all such funds or property in accordance with this Article XII. If the Master Issuer or Guarantors make any payment of principal, premium or interest on any Notes or any other sums under the Indenture Documents while such obligations have been reinstated, the Master Issuer and the Guarantors shall be subrogated to the rights of the Holders or other Secured Parties who received such funds or property from the Trustee to receive such payment in respect of the Notes.
ARTICLE XIII AMENDMENTS
Section 13.1 Without Consent of the Control Party, the Controlling Class Representative or the Noteholders.
the Indenture, be deemed appropriate by the Master Issuer and the Trustee, or to correct or amplify the description of any such property or assets at any time so mortgaged, pledged, conveyed and transferred to the Trustee;
(vii) to comply with Requirements of Law (as evidenced by an Opinion of counsel);
(viii) to facilitate the transfer of Notes in accordance with applicable Requirements of Law (as evidenced by an Opinion of Counsel);
(ix) to take any action necessary or helpful to avoid the imposition, under and in accordance with applicable law, of any Tax, including withholding Tax;
(x) to take any action necessary and appropriate to facilitate the origination of Collateral Business Documents or the management and preservation of the Collateral Business Documents, in each case, in accordance with the Managing Standard; or
(xi) accommodate a replacement Management Agreement, Back-Up Management Agreement or Control Party Agreement if at any time (x) such agreement is terminated or (y) the Manager, the Back-Up Manager or the Control Party is either unwilling or unable to perform its obligations under the Management Agreement, the Back-Up Management Agreement or the Control Party Agreement, as applicable; provided that Rating Agency Confirmation will be required for each Series of Notes that will remain Outstanding after the effective date of such supplement or amendment; provided that, to the extent that any such Supplement, amendment, modification or other supplement impacts the rights, indemnities, protections, remedies, liabilities, duties and/or obligations of the Control Party or the Back-Up Manager, the consent of the Control Party or Back-Up Manager, as applicable, will be required, to the extent that (i) the Control Party or Back-Up Manager, as applicable, will continue to act as Control Party or Back-Up Manager, as applicable, following the execution of any such Supplement, amendment, modification or other supplement or (ii) if the Control Party or the Back-Up Manager, as applicable, is not continuing to act in such capacity, any rights of such Person that, pursuant to the Control Party Agreement or the Back-Up Management Agreement (as applicable), expressly survive the termination of such agreement would be adversely affected by such amendment, modification or supplement;
provided, however, that in the case of any Supplement, amendment, modification or other supplement pursuant to any of clauses (iii), (iv), (ix), (x) or (xi) above, the Trustee, the Back-Up Manager and the Control Party shall have received an Officer’s Certificate certifying that such action could not reasonably be expected to adversely affect in any material respect the interests of any Holder, the Control Party, the Trustee, the Back-Up Manager or any other Secured Party.
provided that the execution of any such amendment, modification or supplement shall be subject to a requirement that the Trustee, the Back-Up Manager and the Control Party have received an Officer’s Certificate certifying that such action could not reasonably be expected to adversely
affect in any material respect the interests of any Holder, the Control Party, the Trustee, the Back- Up Manager or any other Secured Party.
in the execution of any Series Supplement (or any Supplement thereto) authorized or permitted by the terms of this Base Indenture and shall make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such Series Supplement (or any Supplement thereto) which affects its own rights, duties or immunities under this Base Indenture or otherwise.
changes necessary or advisable to accommodate the contribution of (i) any non-U.S. franchise agreements or other non-U.S. assets to the Securitization Entities (including, without limitation, any changes necessary to (x) update existing tax and intellectual property provisions related to existing franchise arrangements and payments received thereunder or (y) include payments received in respect of such non-U.S. franchise agreements or other non-U.S. assets as Collections and account for such payments in the calculation of the Net Cash Flow) or (ii) any corporate- owned Centers to a Securitization Entity formed after the Closing Date for the purpose of owning corporate-owned Centers (including, without limitation, any changes necessary to include the revenue of such corporate-owned Centers in the calculation of the Net Cash Flow).
Section 13.2 With Consent of the Controlling Class Representative or the
Noteholders.
the Guarantee and Collateral Agreement, any Supplement and any other Indenture Document to which the Trustee is a party (unless otherwise provided in such Supplement) may, from time to time, be amended, modified or waived, if such amendment, modification or waiver is in writing in a Supplement and consented to in writing by the Control Party (at the direction of the Controlling Class Representative). Notwithstanding the foregoing:
or the interest thereon is payable; (E) impair the right to institute suit for the enforcement of the provisions of the Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes and the other Obligations on or after the respective due dates thereof, (F) subject to the ability of the Control Party (acting at the
direction of the Controlling Class Representative) to waive certain events as set forth in Section 9.7, amend or otherwise modify any of the specific language of the following definitions: “Default,” “Event of Default,” “Outstanding,” “Potential Rapid Amortization Event” or “Rapid Amortization Event” (as defined herein or any applicable Series Supplement) or (G) amend, waive or otherwise modify this Section 13.2, shall require the consent of each affected Noteholder and each other affected Secured Party; and
Section 13.3 Supplements.
Each amendment or other modification to the Indenture, the Notes or the Guarantee and Collateral Agreement shall be set forth in a Supplement, a copy of which shall be delivered to each Rating Agency, the Control Party, the Controlling Class Representative, the Manager, the Back- Up Manager and the Master Issuer. The Master Issuer shall provide written notice to each Rating Agency of any amendment or modification to the Indenture, the Notes or the Guarantee and Collateral Agreement no less than ten (10) days prior to the effectiveness of the related Supplement, except in connection with the issuance of Additional Notes that will be rated by such Rating Agency; provided that such Supplement need not be in final form at the time such notice is given. The initial effectiveness of each Supplement shall be subject to the delivery to the Control
Party and the Trustee of an Opinion of Counsel that such Supplement is authorized or permitted by this Base Indenture and the conditions precedent set forth herein with respect thereto have been satisfied. Any Series Supplement may be amended in accordance with the manner described above and subject to additional requirements as set forth in such Series Supplement.
Section 13.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. Any such Holder or subsequent Holder, however, may revoke the consent as to his Note or portion of a Note if the Trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Holder. The Master Issuer may fix a record date for determining which Holders must consent to such amendment or waiver.
Section 13.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment or waiver on any Note thereafter authenticated. The Master Issuer, in exchange for all Notes, may issue and the Trustee shall authenticate new Notes that reflect the amendment or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment or waiver.
Section 13.6 The Trustee to Sign Amendments, etc.
The Trustee shall sign any Supplement authorized pursuant to this Article XIII if the Supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing such Supplement, the Trustee shall be entitled to receive, if requested, an indemnity reasonably satisfactory to it and to receive and, subject to Section 10.1, shall be fully protected in relying upon, an Officer’s Certificate of the Master Issuer and an Opinion of Counsel as conclusive evidence that such Supplement is authorized or permitted by this Base Indenture and that all conditions precedent have been satisfied, and that it will be valid and binding upon the Master Issuer and the Guarantors in accordance with its terms.
Section 13.7 Amendments and Fees.
The Master Issuer, the Control Party and the Controlling Class Representative shall negotiate any amendments, waivers or modifications to the Indenture or the other Related Documents that require the consent of the Control Party or the Controlling Class Representative in good faith, and any consent required to be given by the Control Party or the Controlling Class Representative shall not be unreasonably denied or delayed. The Control Party and the Controlling Class Representative shall be entitled to be reimbursed by the Master Issuer only for the reasonable counsel fees incurred by the Control Party or the Controlling Class Representative in reviewing and approving any amendment or in providing any consents, and except as provided in the Control Party Agreement, neither the Control Party nor the Controlling Class Representative shall be entitled to any additional compensation in connection with any amendments or consents to this Base Indenture or to any Related Document.
ARTICLE XIV MISCELLANEOUS
Section 14.1 Notices.
If to the Master Issuer:
EWC Master Issuer LLC
0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx X’Xxxxxx If to the Manager:
EWC Ventures, LLC 0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxxx 00000
If to the Master Issuer with a copy to (which shall not constitute notice):
Ropes & Xxxx LLP
Prudential Tower, 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxx Facsimile: 000-000-0000
If to the Manager with a copy to (which shall not constitute notice):
Ropes & Xxxx LLP
Prudential Tower, 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxx Facsimile: 000-000-0000
If to the Back-Up Manager:
FTI Consulting, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: Back-Up Manager c/o Xxxxxx X. Xxxxxxxx Facsimile: 000-000-0000
Email: xxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx If to the Control Party:
Drivetrain Agency Services, LLC
000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 Attention: Xxx Xxxxxxxxx
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx If to the Trustee:
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000
Attention: Agency & Trust – EWC Master Issuer LLC
Email: xxxxxxx.xxxxx@xxxx.xxx or call (000) 000-0000 to obtain Citibank, N.A. account manager’s email address
If to KBRA:
Xxxxx Bond Rating Agency, LLC 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: ABS Surveillance
E-mail: xxxxxxxxxxxxxxx@xxxx.xxx
If to an Enhancement Provider or an Hedge Counterparty:
At the address provided in the applicable Enhancement Agreement or the applicable Series Hedge Agreement.
(1) Business Day after the date that such notice is delivered to such overnight courier, (v) when posted on a password-protected website shall be deemed delivered after notice of such posting has been provided to the recipient and (vi) delivered by email shall be deemed delivered on the date of delivery of such notice.
Manager, shall be deemed to have been delivered to both the Master Issuer and the Manager if the Manager has prepared or is otherwise in possession of such notice, communication, certificate, report, statement or other information, and in no event shall the Manager or the Master Issuer be in breach of any delivery requirements hereunder for constructive delivery pursuant to this Section 14.1(g).
Section 14.2 Communication by Holders With Other Holders.
Holders may communicate with other Holders with respect to their rights under the Indenture or the Notes.
Section 14.3 Officer’s Certificate as to Conditions Precedent.
Upon any request or application by the Master Issuer to the Controlling Class Representative, the Control Party or the Trustee to take any action under the Indenture or any other Related Document, the Master Issuer to the extent requested by the Controlling Class Representative, the Control Party or the Trustee shall furnish to the Controlling Class Representative, the Control Party and the Trustee (a) an Officer’s Certificate of the Master Issuer
in form and substance reasonably satisfactory to the Controlling Class Representative, the Control Party or the Trustee, as applicable (which shall include the statements set forth in Section 14.4), stating that all conditions precedent and covenants, if any, provided for in the Indenture or such other Related Documents relating to the proposed action have been complied with and (b) an Opinion of Counsel confirming the same. Such Opinion of Counsel shall be at the expense of the Master Issuer.
Section 14.4 Statements Required in Certificate.
Each certificate with respect to compliance with a condition or covenant provided for in the Indenture or any other Related Document shall include:
complied with.
Section 14.5 Rules by the Trustee.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
Section 14.6 Benefits of Indenture.
Except as set forth in a Series Supplement, nothing in this Base Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders and the other Secured Parties, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 14.7 Payment on Business Day.
In any case where any Quarterly Payment Date, redemption date or maturity date of any Note shall not be a Business Day, then (notwithstanding any other provision of the Indenture) payment of interest or principal (and premium, if any), as the case may be, need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the Quarterly Payment Date, redemption date or maturity date; provided, however, that no interest shall accrue for the period from and after such Quarterly Payment Date, redemption date or maturity date, as the case may be.
Section 14.8 Governing Law.
THIS BASE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 14.9 Successors.
All agreements of the Master Issuer in the Indenture, the Notes and each other Related Document to which it is a party shall bind its successors and assigns; provided, however, the Master Issuer must not assign its obligations or rights under the Indenture or any other Related Document, except with the written consent of the Control Party. All agreements of the Trustee in the Indenture shall bind its successors.
Section 14.10 Severability.
In case any provision in the Indenture, the Notes or any other Related Document shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 14.11 Counterpart Originals.
This Base Indenture may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single agreement.
Section 14.12 Table of Contents, Headings, etc.
The Table of Contents and headings of the Articles and Sections of the Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 14.13 No Bankruptcy Petition Against the Securitization Entities.
Each of the Holders, the Trustee and the other Secured Parties hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing in this Section 14.13 shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Related Document. In the event that any such Holder or other Secured Party or the Trustee takes action in violation of this Section 14.13, each affected Securitization Entity shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contesting the filing of such a petition by any such Holder or Secured Party or the Trustee against such Securitization Entity or the commencement of such action and raising the defense that such Holder or other Secured Party or the Trustee has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. The provisions of this Section 14.13 shall survive the termination of the Indenture and the resignation or removal of the Trustee. Nothing contained herein shall preclude participation by any Holder or any other Secured Party or the Trustee in the assertion or defense of its claims in any such proceeding involving any Securitization Entity.
Section 14.14 Recording of Indenture.
If the Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Master Issuer and at its expense.
Section 14.15 Waiver of Jury Trial.
EACH OF THE MASTER ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS BASE INDENTURE, THE NOTES, THE OTHER RELATED DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
Section 14.16 Submission to Jurisdiction; Waivers.
Each of the Master Issuer and the Trustee hereby irrevocably and unconditionally:
Section 14.17 Permitted Asset Dispositions; Release of Collateral.
After consummation of a Permitted Asset Disposition, all Liens with respect to the disposed property created in favor of the Trustee for the benefit of the Secured Parties under the Base Indenture and the other Related Documents shall be automatically released, and upon request of the Master Issuer, the Trustee, at the written direction of the Control Party (who shall be entitled to, and may conclusively rely upon, an Officer’s Certificate of the Master Issuer certifying that all conditions precedent to such release have been satisfied), shall execute and deliver to the Master Issuer any and all documentation reasonably requested and prepared by the Master Issuer at the Master Issuer’s expense to effect or evidence the release by the Trustee of the Secured Parties’ security interest in the property disposed of in connection with such Permitted Asset Disposition.
Section 14.18 Calculation of Holdco Leverage Ratio and Senior ABS Leverage Ratio
Section 14.19 Instructions and Directions on Behalf of the Master Issuer.
Instructions, directions, notices or reports to be provided by the Master Issuer or any other Securitization Entity hereunder, may be provided by the Manager on behalf of the Master Issuer.
Section 14.1 Electronic Signatures and Transmission.
For purposes of this Base Indenture and any of the other Indenture Documents or Related Documents, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Indenture, Indenture Documents or Related Documents, that a document, including any Notes, is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission; provided that upon the request of any Noteholder that any of its Notes be delivered in physical form, the Master Issuer and the Trustee shall cooperate to deliver such Notes to such Noteholder in physical form as soon as reasonably practicable, but in no more than ten (10) Business Days from the date of such request in any event. Notwithstanding anything to the contrary in this Base Indenture, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Master Issuer, the Trustee and the Securities Intermediary have caused this Base Indenture to be duly executed by its respective duly Authorized Officer as of the day and year first written above.
EWC MASTER ISSUER LLC, as Master Issuer
By:/s/ Xxxxx X’Xxxxxx
Name: Xxxxx X’Xxxxxx
Title: Chief Legal Officer
CITIBANK, N.A., not in its individual capacity, but solely as Trustee and as Securities Intermediary
By:/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Senior Trust Officer
ANNEX A
BASE INDENTURE DEFINITIONS LIST
“1933 Act” means the Securities Act of 1933, as amended.
“1934 Act” means the Securities Exchange Act of 1934, as amended. “1940 Act” means the Investment Company Act of 1940, as amended.
“Account Agreement” means each agreement governing the establishment and maintenance of any Management Account or any other Base Indenture Account or Series Account to the extent that any such account is not held at the Trustee.
“Account Control Agreement” means each control agreement, in form and substance reasonably satisfactory to the Trustee, pursuant to which the Trustee is granted the right to control deposits and withdrawals from, or otherwise give instructions or entitlement orders in respect of, a deposit and/or securities account and any lock-box related thereto.
“Accounts” means, collectively, the Indenture Trust Accounts, the Management Accounts and any other account subject to an Account Control Agreement.
“Actual Knowledge” means the actual knowledge of (i) in the case of EWC Ventures, in its individual capacity or in its capacity as Manager, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel or any Senior Vice President of EWC Ventures,
“Additional Management Account” has the meaning set forth in Section 5.1(a) of the Base Indenture.
“Additional Notes” means any Series, Class, Subclass and Tranche of Notes and any additional Notes of an existing Series, Class, Subclass or Tranche of Notes, in each case, issued by the Master Issuer after the Closing Date.
“Additional Securitization Entity” means any entity that becomes a direct or indirect wholly-owned Subsidiary of the Master Issuer or any other Securitization Entity after the Closing Date in accordance with and as permitted under the Related Documents and is designated by the Master Issuer as an “Additional Securitization Entity” pursuant to Section 8.34 of the Base Indenture.
Annex A-2
“Advance Funding Administrative Agent” means Bank of America, N.A., and its successors and assigns in accordance with the terms of the Advance Funding Agreement.
“Advance Funding Agreement” means that certain advance funding agreement, entered into as of the Closing Date, among the Advance Funding Administrative Agent, the Securitization Entities, the Manager and each Advance Funding Provider party thereto, as such agreement may be amended, amended and restated or otherwise modified from time to time.
“Advance Funding Provider” means, initially, Bank of America, N.A., and any other advance funding provider pursuant to the terms of the Advance Funding Agreement from time to time.
“Advance Funding Provider Fee” has the meaning set forth in the Advance Funding Agreement.
“Advance Funding Provider Fee Cap” means an amount per annum equal to 1.00% of the Maximum Advance Amount.
“Advance Funding Reserve Account” has the meaning specified in Section 5.5(a) of this Base Indenture.
“Advance Funding Reserve Account Required Amount” means an amount equal to the lesser of (i) (x) the Senior Notes Interest Reserve Amount minus (y) the aggregate amount of all funds on deposit in the Advance Funding Reserve Account and (ii) the product of (x) 25% and
(y) the amount of funds available in the Collection Account on such Weekly Allocation Date after payment of priorities (i) through (xii) of the Priority of Payments.
“Advance Funding Reserve Period” means any period that begins on any Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than 1.85x and that ends on any subsequent Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is equal to or exceeds 1.85x; provided, the thresholds set forth in this definition may be increased at the request of the Master Issuer upon delivery of an Officer’s Certificate from the Master Issuer to the Trustee, the Control Party and the Back-Up Manager, certifying that such increase does not materially adversely affect the Noteholders, unless any Advance Funding Reserve Period is in effect, in which case the approval of each noteholder of each Series of applicable Notes shall be required.
“Advance Funding Reserve Release Amount” has the meaning specified in Section 5.14(k)(xii) hereof.
“Advance Funding Reserve Release Event” has the meaning specified in Section 5.14(k)(xii) hereof.
“Advance Interest Rate” means a rate equal to the Prime Rate plus 3.0% per annum (compounded monthly).
Annex A-3
“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such specified Person; provided, however, that no equity holder of Holdco or any Affiliate of such equity holder shall be deemed to be an Affiliate of any Non-Securitization Entity or any Securitization Entity. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or other ownership or beneficial interests, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative to the meaning of “control.”
“After-Acquired Securitization IP” means all Intellectual Property (other than Excluded IP) created, developed, authored or acquired by or on behalf of, or (to the extent of the rights licensed) licensed to or on behalf of, the Franchisor or any additional Securitization Entities after the Closing Date pursuant to the IP License Agreements or otherwise, including, without limitation, all Manager-Developed IP and all Licensee-Developed IP.
“Agent” means any Registrar or Paying Agent.
“Aggregate Outstanding Principal Amount” means the sum of the Outstanding Principal Amounts with respect to all Series of Notes.
“Allocated Note Amount” means, as of any date of determination, an amount equal to the greater of (x) zero and (y) with respect to (i) any Franchise Asset or Securitized Supply Agreement in existence on the Closing Date, the pro rata portion of $400,000,000 allocated to such asset on the Closing Date based on such asset’s expected contribution to Retained Collections as estimated by the calculation of Transaction-adjusted Securitized Net Cash Flow and (ii) any Franchise Asset or Securitized Supply Agreement arising or entered into after the Closing Date, the Outstanding Principal Amount of the Notes allocated to such asset, on the date such asset was included in the Securitized Assets, based on such asset’s contribution to Retained Collections during the then- most recently ended four Quarterly Collection Periods (or in the case of the first four Quarterly Collection Periods, the estimated Retained Collections). With respect to any Franchise Asset or Securitized Supply Agreement that does not have a four Quarterly Collection Period operating period as of the date such asset was included in the Securitized Assets, such asset’s contribution to Retained Collections will equal (a) in the case of a New Franchise Agreement or New Multi- Unit Development Agreement, the average of all collected Franchisee Payments under all Franchise Agreements or Multi-Unit Development Agreements, as the case may be, during the four (4) Quarterly Collection Periods ending as of the date such Franchise Agreement or Multi- Unit Development Agreement, as the case may be, was included in the Securitized Assets, and (b) in the case of a Securitized Supply Agreement, the average of all Product Cash Profit Amounts with respect to such Securitized Supply Agreement during the twelve-month period after such inclusion.
“Annual Accountants’ Report” has the meaning set forth in Section 4.1(d) of the Base Indenture.
“Applicable Procedures” means the provisions of the rules and procedures of DTC, the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of
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Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream, as in effect from time to time.
“Applicants” has the meaning set forth in Section 2.7(a) of the Base Indenture.
“Asset Disposition Collections” has the meaning set forth in Section 8.16 of the Base Indenture.
“Asset Disposition Proceeds” means, with respect to any disposition of property by a Securitization Entity, other than dispositions resulting in Asset Disposition Collections, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such disposition (including any cash or cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable property and that is required to be repaid in connection with such disposition (other than Indebtedness under the Notes) to the extent such principal amount is actually repaid, (B) the reasonable and customary out-of-pocket expenses incurred by the Securitization Entities in connection with such disposition and (C) income Taxes reasonably estimated to be actually payable within two (2) years of such disposition as a result of any gain recognized in connection therewith.
“Asset Disposition Proceeds Account” means the account established with the Trustee or maintained in the name of the Master Issuer, subject to an Account Control Agreement, and pledged to the Trustee, into which the Manager is required to cause Asset Disposition Proceeds to be deposited pursuant to Section 5.12(g) of the Base Indenture or any successor account established for the Master Issuer by the Manager for such purpose pursuant to the Base Indenture and the Management Agreement, including any investment accounts related thereto into which funds are transferred for investment purposes pursuant to Section 5.2(b) of the Base Indenture.
“Asset Disposition Reinvestment Period” has the meaning specified in Section 5.12(g) of the Base Indenture.
“Authorized Officer” means, with respect to (i) any Securitization Entity, any officer who is authorized to act for such Securitization Entity in matters relating to such Securitization Entity, including an Authorized Officer of the Manager authorized to act on behalf of such Securitization Entity; (ii) EWC Ventures, in its individual capacity and in its capacity as the Manager, any officer who is directly responsible for managing the Retained Corporate-Owned Center Business or otherwise authorized to act for EWC Ventures or any other officer of EWC Ventures who is authorized to act for the Manager in matters relating to, and binding upon, the Manager with respect to the subject matter of the request, certificate or order in question; (iii) Holdco, in its individual capacity, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel, the Treasurer or any Senior Vice President of Holdco, (iv) the Trustee or any other bank or trust company acting as trustee of an express trust or as custodian, a Trust Officer;
(v) the Control Party, any officer of the Control Party who is duly authorized to act for the Control Party with respect to the relevant matter; or (vi) the Advance Funding Administrative Agent, any officer of the Advance Funding Administrative Agent who is duly authorized to act for the Advance Funding Administrative Agent with respect to the relevant matter. Each party may receive and accept a certification of the authority of any other party as conclusive evidence of the
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authority of any Person to act, and such certification may be considered as in full force and effect until receipt by such other party of written notice to the contrary.
“Back-Up Management Agreement” means the Back-Up Management and Consulting Agreement, dated as of the Closing Date, by and among the Master Issuer, the other Securitization Entities party thereto, the Manager, the Trustee and the Back-Up Manager, as amended, supplemented or otherwise modified from time to time.
“Back-Up Manager” means FTI Consulting, Inc., a Maryland corporation, in its capacity as Back-Up Manager pursuant to the Back-Up Management Agreement, and any successor Back- Up Manager.
“Back-Up Manager Consent Consultation Fees” has the meaning set forth in the Back-Up Management Agreement.
“Back-Up Manager Fees” has the meaning set forth in the Back-Up Management Agreement.
“Bankruptcy Code” means the provisions of Title 11 of the United States Code, 11 U.S.C. Section 101 et seq.
“Base Indenture” means the Base Indenture, dated as of the Closing Date, by and among the Master Issuer and the Trustee, as amended, supplemented or otherwise modified from time to time, exclusive of any Series Supplement.
“Base Indenture Account” means any account or accounts authorized and established pursuant to the Base Indenture for the benefit of the Secured Parties, including, without limitation, each account established pursuant to Article V of the Base Indenture.
“Base Indenture Definitions List” has the meaning set forth in Section 1.1 of the Base Indenture.
“Board of Directors” means the Board of Directors of any corporation or any unlimited company, or any authorized committee of such Board of Directors.
“Book-Entry Notes” means beneficial interests in the Notes of any Series, ownership and transfers of which will be evidenced or made through book entries by a Clearing Agency as described in Section 2.12 of the Base Indenture; provided that, after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Notes are issued to the Note Owners, such Definitive Notes will replace Book-Entry Notes.
“Branded Products” means European Wax Center branded retail products.
“Business Day” means any day other than Saturday or Sunday or any other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State of Texas, New York, New York or the city in which the Corporate Trust Office of any successor Trustee is located if so required by such successor.
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“Capitalized Lease Obligations” means the obligations of a Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of the Indenture, the amount of such obligations will be the capitalized amount thereof determined in accordance with GAAP.
“Capped Class A-1 Notes Administrative Expenses Amount” means, for each Weekly Allocation Date with respect to any Quarterly Collection Period, an amount equal to the lesser of
(a) the Class A-1 Notes Administrative Expenses that have become due and payable prior to such Weekly Allocation Date and have not been previously paid and (b) the amount by which
(i) $100,000 exceeds (ii) the aggregate amount of Class A-1 Notes Administrative Expenses previously paid on each preceding Weekly Allocation Date that occurred (x) in the case of a Weekly Allocation Date occurring during the period beginning on the Closing Date and ending on the date on which 24 full and consecutive Weekly Collection Periods have occurred, since the Closing Date and (y) in the case of a Weekly Allocation Date occurring during any successive period of 24 consecutive Weekly Collection Periods after the period in clause (x), since the beginning of such period.
“Capped Securitization Operating Expense Amount” means, for any Weekly Allocation Date that occurs during each calendar year, the amount by which $500,000 exceeds the aggregate Securitization Operating Expenses already paid during such period; provided, however, that during any period that the Back-Up Manager is required to provide Warm Back-Up Management Duties or Hot Back-Up Management Duties pursuant to the Back-Up Management Agreement, (x) the Capped Securitization Operating Expense Amount shall automatically be increased by an additional $750,000 solely in order to provide for the reimbursement of any increased fees and expenses incurred by the Back-Up Manager associated with the provision of such services and (y) the Control Party, acting at the direction of the Controlling Class Representative, may further increase the Capped Securitization Operating Expense Amount as calculated above solely in order to provide for the reimbursement of any such increased fees and expenses incurred by the Back- Up Manager that are not reimbursed through the increase in the Capped Securitization Operating Expense Amount described in clause (x) above.
“Cash Collateral” has the meaning set forth in Section 5.14(d)(iii) of the Base Indenture. “Cash Collateralized Letter of Credit” means any letter of credit that is 100% cash
collateralized.
“Cash Trap Reserve Account” means the reserve account no. 00000000 entitled “Citibank,
N.A. f/b/o EWC Master Issuer LLC, Cash Trap Reserve Account”, which account is required to be maintained by the Trustee for the purpose of trapping cash upon the occurrence of a Cash Trapping Event, or any successor securities account established pursuant to the Base Indenture.
“Cash Trapping Amount” means, for any Weekly Allocation Date during a Cash Trapping Period, an amount equal to the product of (i) the applicable Cash Trapping Percentage and (ii) the amount of funds available in the Collection Account on such Weekly Allocation Date after payment of priorities (i) through (xii) of the Priority of Payments (but with respect to the first
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Weekly Allocation Date on or after a Cash Trapping Release Date, net of the Cash Trapping Release Amount released on such Cash Trapping Release Date); provided that, for any Weekly Allocation Date following the occurrence and during the continuation of a Rapid Amortization Event, or an Event of Default, the Cash Trapping Amount will be zero.
“Cash Trapping DSCR Threshold” means a DSCR equal to 1.75x.
“Cash Trapping Event” means, as of any Quarterly Payment Date, that the DSCR calculated as of the immediately preceding Quarterly Calculation Date is less than the Cash Trapping DSCR Threshold.
“Cash Trapping Percentage” means, with respect to any Weekly Allocation Date during a Cash Trapping Period, a percentage equal to (i) 50%, if the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than 1.75x but equal to or greater than 1.50x, and (ii) 100%, if the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than 1.50x.
“Cash Trapping Period” means any period that begins at the close of business on any Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than the Cash Trapping DSCR Threshold and will end on the first Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is equal to or exceeds the Cash Trapping DSCR Threshold.
“Cash Trapping Release Amount” means, (i) with respect to any Cash Trapping Release Date on which a Cash Trapping Period is no longer in effect, the full amount on deposit in the Cash Trap Reserve Account, and (ii) with respect to any other Cash Trapping Release Date, 50% of the aggregate amount deposited to the Cash Trap Reserve Account during the most recent period in which the applicable Cash Trapping Percentage was equal to 100%, after having been reduced ratably for any withdrawals made from the Cash Trap Reserve Account during such period for any other purpose.
“Cash Trapping Release Date” means any Quarterly Payment Date (i) on which a Cash Trapping Period is no longer continuing or (ii) on which the Cash Trapping Percentage is equal to 50% and on the prior Quarterly Payment Date, the applicable Cash Trapping Percentage was equal to 100%.
“Casualty Reinvestment Period” has the meaning specified in Section 5.12(h) of the Base Indenture.
“Cause” means, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager constituting fraud, dishonesty, negligence, misconduct or other deliberate action which causes injury to any Securitization Entity or an act by such Independent Manager involving moral turpitude or a serious crime, (ii) that such Independent Manager no longer meets the definition of “Independent Manager” as set forth in the applicable Securitization Entity’s Charter Documents or (iii) a material increase in fees charged by such Independent Manager; provided, that the Independent Manager may only be removed for Cause pursuant to this clause (iii) with the consent of the Control Party.
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“CCR Acceptance Letter” has the meaning set forth in Section 11.1(e) of the Base Indenture.
“CCR Ballot” has the meaning set forth in Section 11.1(c) of the Base Indenture. “CCR Candidate” has the meaning set forth in Section 11.1(b) of the Base Indenture. “CCR Election” has the meaning set forth in Section 11.1(c) of the Base Indenture.
“CCR Election Notice” has the meaning set forth in Section 11.1(b) of the Base Indenture. “CCR Election Period” has the meaning set forth in Section 11.1(c) of the Base Indenture. “CCR Nomination” has the meaning set forth in Section 11.1(b) of the Base Indenture.
“CCR Nomination Period” has the meaning set forth in Section 11.1(b) of the Base Indenture.
“CCR Quorum Amount” means 50% of the sum of (x) the Outstanding Principal Amount (with respect to any Notes of the Controlling Class other than Class A-1 Notes) and (y) the Class A-1 Notes Voting Amount of the Notes of the Controlling Class as of the CCR Voting Record Date.
“CCR Re-election Event” means any of the following events: (i) an additional Series of Notes of the Controlling Class is issued, (ii) the Controlling Class changes, (iii) the Trustee receives written notice of the resignation or removal of any acting Controlling Class Representative, (iv) the Trustee receives a written request for an election for a Controlling Class Representative from a Majority of the Controlling Class Members, which election will be at the expense of such Controlling Class Members (including Trustee expenses), (v) the Trustee receives written notice that an Event of Bankruptcy has occurred with respect to the acting Controlling Class Representative, (vi) there is no Controlling Class Representative and the Control Party requests an election be held or (vii) at any time the Majority of the Controlling Class Members is acting as Transition Control Party, a Warm Back-Up Management Trigger Event or a Hot Back- Up Management Trigger Event occurs; provided, that with respect to a CCR Re-election Event that occurs as a result of clauses (iv) and (vi), no CCR Re-election Event will be deemed to have occurred if it would result in more than two (2) CCR Re-election Events occurring in a single calendar year. Within two (2) Business Days of any other change in the name or address of the Controlling Class Representative of which the Trustee has received notice from the Controlling Class Representative, the Trustee will deliver to the noteholders via the Applicable Procedures of the Clearing Agency, the Class A-1 Administrative Agent, the Master Issuer, the Manager, the Back-Up Manager and the Control Party a notice setting forth the name and address of the new Controlling Class Representative.
“CCR Voting Amount” means (i) the Class A-1 Notes Voting Amount with respect to each Series of Class A-1 Notes of the Controlling Class and (ii) the Outstanding Principal Amount of each Series of Notes of the Controlling Class (other than Class A-1 Notes) or any beneficial interest therein, in each case, that are Outstanding as of the CCR Voting Record Date and, in each case, with respect to which votes were submitted.
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“CCR Voting Record Date” has the meaning set forth in Section 11.1(c) of the Base Indenture.
“Centers” means, as of any date of determination, (i) any waxing centers operated in the United States under the European Wax Center Brand and (ii) any waxing centers located outside of the United States and subject to Contributed Franchise Agreements (it being understood that the Non-Securitization Entities have no obligation to contribute any Franchise Agreements for waxing centers located outside of the United States to the Franchisor).
“Charter Documents” means, with respect to any entity and at any time, the certificate of incorporation, certificate of formation, operating agreement, by-laws, memorandum of association, articles of association, or such other similar document, as applicable to such entity in effect at such time.
“Class” means, with respect to any Series of Notes, any one of the classes of Notes of such Series as specified in the applicable Series Supplement, which may include Subclasses or Tranches.
“Class A-1 Administrative Agent” means, with respect to any Series of Class A-1 Notes, the Person identified as the “Class A-1 Administrative Agent” in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Commitment Fee Adjustment Amount” means, for any Series of Class A-1 Notes for any Interest Accrual Period, the aggregate amount, if any, for such Interest Accrual Period that is identified as the “Class A-1 Commitment Fee Adjustment Amount” in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Interest Adjustment Amount” means, for any Series of Class A-1 Notes for any Interest Accrual Period, the aggregate amount, if any, for such Interest Accrual Period that is identified as a “Class A-1 Interest Adjustment Amount” in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Notes” means any Notes alphanumerically designated as “Class A-1” pursuant to the Series Supplement applicable to such Class of Notes.
“Class A-1 Notes Accrued Quarterly Commitment Fee Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period and the Interest Accrual Period beginning during such Quarterly Collection Period, and with respect to any Series of Class A-1 Notes Outstanding, the aggregate amount of commitment fees due and payable, with respect to such Weekly Allocation Date on such Series of Class A-1 Notes that is identified as “Class A-1 Notes Accrued Quarterly Commitment Fee Amount” in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Notes Administrative Expenses” means all amounts due and payable pursuant to any Variable Funding Note Purchase Agreement that are identified as “Class A-1 Notes Administrative Expenses” in each applicable Series Supplement or Variable Funding Note Purchase Agreement.
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“Class A-1 Notes Amortization Event” means any event designated as a “Class A-1 Notes Amortization Event” in any Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Notes Commitment Fees Account” has the meaning set forth in Section 5.8(a)(iv) of the Base Indenture.
“Class A-1 Notes Maximum Principal Amount” means, with respect to each Series of Class A-1 Notes Outstanding, the aggregate maximum principal amount of such Series of Class A-1 Notes as identified in the applicable Series Supplement or Variable Funding Note Purchase Agreement as reduced by any permanent reductions of commitments with respect to such Series of Class A-1 Notes and any cancellations of repurchased Class A-1 Notes thereunder.
“Class A-1 Notes Other Amounts” means all amounts due and payable pursuant to any Variable Funding Note Purchase Agreement that are identified as “Class A-1 Notes Other Amounts” in such Variable Funding Note Purchase Agreement.
“Class A-1 Notes Renewal Date” means, with respect to any Series of Class A-1 Notes, the date identified as the “Class A-1 Notes Renewal Date” in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Class A-1 Notes Voting Amount” has the meaning set forth in Section 2.1(b)(i) of the Base Indenture or Variable Funding Note Purchase Agreement.
“Class A-1 Quarterly Commitment Fee Amounts” means, for any Interest Accrual Period, with respect to each Series of Class A-1 Notes Outstanding, the aggregate amount of commitment fees due and payable, with respect to such Interest Accrual Period, on such Series of Class A-1 Notes that is identified as “Class A-1 Quarterly Commitment Fee Amounts” in the applicable Series Supplement or Variable Funding Note Purchase Agreement. “Class A-1 Quarterly Commitment Fees Shortfall Amount” has the meaning set forth in Section 5.14(b)(iii) of the Base Indenture.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the 1934 Act or any successor provision thereto or Euroclear or Clearstream.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Clearstream” means Clearstream Banking, societe anonyme and any successor entity. “Closing Date” means April 6, 2022.
“Closing Date Securitization IP” means all Intellectual Property (other than the Excluded IP and Excepted Securitization IP Assets) created, developed, authored, acquired or owned by or on behalf of, or (to the extent of the rights licensed) licensed to or on behalf of, Manager, the Holding Company Guarantor, the Master Issuer, any other IP Contributing Non-Securitization Entity, or the Franchisor as of the Closing Date covering, reading on, embodied in or otherwise relating to (i) the European Wax Center System or European Wax Center Brand, (ii) products or
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services sold or distributed via the European Wax Center System under the European Wax Center Brand, (iii) the Centers, or (iv) the Franchised Center Business.
“Code” means the U.S. Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time, and any successor statute of similar import, in each case as in effect from time to time.
“Collateral” means, collectively, the Indenture Collateral, the “Collateral” as defined in the Guarantee and Collateral Agreement and any property subject to any other Indenture Document that grants a Lien to secure any Obligations.
“Collateral Business Documents” means, collectively, the Franchise Documents, the Securitized Supply Agreements and the Contribution Agreements.
“Collateral Exclusions” has the meaning set forth in Section 3.1(a) of the Base Indenture.
“Collateral Protection Advance” means any advance of (a) payment of taxes, rent, assessments, insurance premiums, and other related or similar costs and expenses necessary to protect, preserve or restore the Collateral and (b) payments of any Securitization Operating Expenses (excluding (i) any indemnification obligations, (ii) business and/or asset related operating expenses, (iii) fees and expenses of external legal counsel that are not directly related to the maintenance or preservation of the Collateral, and (iv) damages, costs, or expenses relating to fraud, bad faith, willful misconduct, violations of law, bodily injury, property damage or misappropriation of funds) to the extent not previously paid pursuant to a Manager Advance.
“Collateral Protection Payment Request” has the meaning set forth in Section 5.3(d) of the Base Indenture.
“Collateral Protection Payments” means any payment of (a) taxes, rent, assessments, insurance premiums and other costs and expenses necessary to protect, preserve or restore the Collateral and (b) any expenses of any Securitization Entity, to the extent not previously paid pursuant to a Manager Advance.
“Collateral Protection Withdrawal Cap” means, for the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, an amount such that, immediately after giving effect to the withdrawal of such amount from such account, there would be an amount remaining in such account equal to (x) with respect to the Senior Notes Interest Reserve Account, the Senior Notes Quarterly Interest Amount due on the next Quarterly Payment Dates (assuming (i) that amounts available under each Variable Funding Note Purchase Agreement at such time (after giving effect to any commitment reductions and corresponding principal payments on such date) are fully drawn and (ii) the rate on each Class A-1 Note is equivalent to the rate on a Class A-2 Note with the shortest time until its Series Anticipated Repayment Date) or (y) with respect to the Senior Subordinated Notes Interest Reserve Account, the Senior Subordinated Notes Quarterly Interest Amount due on the next Quarterly Payment Date.
“Collateral Transaction Documents” means the Contribution Agreements, the Charter Documents of each Securitization Entity, the IP License Agreements, the Control Party Agreement,
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the Account Control Agreements, the Management Agreement and the Back-Up Management Agreement.
“Collateralized Letters of Credit” has the meaning set forth in Section 5.14(d)(iii) of the Base Indenture.
“Collection Account” means account no. 00000000 entitled “Citibank, N.A. f/b/o EWC Master Issuer LLC, Collection Account”, which account is required to be maintained by the Trustee pursuant to Section 5.7 of the Base Indenture or any successor securities account maintained pursuant to Section 5.7 of the Base Indenture.
“Collection Account Administrative Accounts” has the meaning set forth in Section 5.8 of the Base Indenture.
“Collections” means, with respect to each Weekly Collection Period, all amounts received by or for the account of the Securitization Entities during such Weekly Collection Period, including (without duplication):
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Assets.
“Commitment” has the meaning set forth in the applicable Series Supplement. “Company Order” means a written order or request signed in the name of the Master Issuer
by any Authorized Officer of the Master Issuer and delivered to the Trustee, the Control Party or the Paying Agent.
“Competitor” means any Person that is a direct or indirect franchisor, franchisee, owner or operator of a large regional or national out-of-home waxing service concept (including a Franchisee); provided, however, that (i) a Person will not be a “Competitor” solely by virtue of its direct or indirect ownership of less than 5.0% of the Equity Interests in a “Competitor” and (ii) a franchisee will only be a “Competitor” if it, or its Affiliates, directly or indirectly, owns, franchises or licenses, in the aggregate, ten or more individual locations of a particular concept; and provided, further, that (iii) a Person will not be a “Competitor” solely by virtue of its direct or indirect ownership of between 5.0% and 15% of the Equity Interests in a “Competitor” so long as (a) such Person has policies and procedures that prohibit such Person from disclosing or making available any confidential information that such Person may receive as a noteholder or prospective investor in the Notes, to individuals involved in the business of buying, selling, holding or analyzing the Equity Interests of a “Competitor” or in the business of being a franchisor, franchisee, owner or operator of a large regional or national out-of-home waxing service concept and (b) such Person is a passive investor in a “Competitor” as described in Rule 13d-1(b)(1) of the 1934 Act (or would be described as a passive investor under such rule if the “Competitor” were a publicly-traded company and the securities held were publicly-traded equity securities) and is not a franchisor, franchisee, owner (other than in its capacity as a passive investor as described in Rule 13d-1(b)(1) of the 0000 Xxx) or operator of a large regional or national out-of-home waxing service concept (including a Franchisee).
“Concentration Accounts” means one or more deposit accounts maintained in the name of the Master Issuer, the Franchisor, the Distributor or any other Securitization Entity, as applicable, in each case that is required to be subject to an Account Control Agreement, and required to be pledged to the Trustee into which the Manager causes amounts to be deposited pursuant to Section 5.12(e) of the Base Indenture or any successor account established for the Master Issuer, the Franchisor or the Distributor, as applicable, for such purpose pursuant to the Base Indenture and the Management Agreement, including any investment accounts related thereto into which funds are transferred for investment purposes pursuant to Section 5.12(b) of the Base Indenture.
“Concentration Reserve Amount” means, as of any date of determination, an amount determined by the Manager to be retained in one or more Concentration Account(s) for working capital expenses not to exceed an aggregate amount equal to the greater of (x) 2.5% of Retained Collections and (y) $2,500,000.
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“Consent Recommendation” means a written recommendation by the Control Party to the Controlling Class Representative with respect to any Consent Request that requires the consent of the Controlling Class Representative.
“Consent Request” means any request for a direction, waiver, amendment, consent or certain other action under the Related Documents.
“Consolidated Net Income” means, with respect to any Person for any period, the consolidated net income of such Person and its Subsidiaries (whether positive or negative), determined in accordance with GAAP, for such period.
“Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person (a) with respect to any indebtedness, lease, declared but unpaid dividends, letter of credit or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof or (b) under any letter of credit issued for the account of that Person or for which that Person is otherwise liable for reimbursement thereof. Contingent Obligation will include (x) the direct or indirect guarantee, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another and
“Contractual Obligation” means, with respect to any Person, any provision of any security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contributed Assets” means all assets contributed under the Contribution Agreements. “Contributed Franchise Agreements” means all Franchise Agreements and related
guaranty agreements existing as of the Closing Date that are contributed to any Securitization
Entity on the Closing Date pursuant to the applicable Contribution Agreements.
“Contributed Multi-Unit Development Agreements” means all Multi-Unit Development Agreements and related guaranty agreements existing as of the Closing Date that are contributed to any Securitization Entity on the Closing Date pursuant to the applicable Contribution Agreements to any Securitization Entity on the Closing Date pursuant to the applicable Contribution Agreements.
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“Contributed Securitized Supply Agreements” means all Supply Agreement existing as of the Closing Date that are contributed to the Distributor on the Closing Date pursuant to the applicable Contribution Agreements.
“Contribution Agreements” means the following agreements:
“Control Party” means Drivetrain Agency Services, LLC, as Control Party, under the Control Party Agreement, and any successor thereto.
“Control Party Agreement” means the Control Party Agreement, dated as of the Closing Date, entered into by and among the Control Party, the Securitization Entities, the Manager and the Trustee.
“Control Party Fee” has the meaning set forth in the Control Party Agreement. “Control Party Standard” has the meaning set forth in the Control Party Agreement.
“Control Party Termination Event” has the meaning set forth in the Control Party Agreement.
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“Control Party Transition Period” has the meaning set forth in the Control Party Agreement.
“Control Party Transition Period Actions” has the meaning set forth in Section 11.4(g) of
the Base Indenture.
“Controlled Foreign Corporation” has the meaning given to such term in Section 957 of the Code.
“Controlled Group” means a group of trades or businesses that includes any trade or business (whether or not incorporated) that, together with any Securitization Entity, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code.
“Controlling Class” means the most senior Class of Notes then Outstanding among all Series of Notes then Outstanding.
“Controlling Class Member” means, with respect to a Book-Entry Note of the Controlling Class, a Note Owner of such Note, and with respect to a Definitive Note of the Controlling Class, a Noteholder of such Definitive Note (excluding, in each case, any Securitization Entity or Affiliate thereof).
“Controlling Class Representative” means, at any time during which one or more Series of Notes is outstanding, the representative, if any, that has been elected pursuant to Section 11.1 of the Base Indenture by the Majority of Controlling Class Members; provided that, if no Controlling Class Representative has been elected or if the Controlling Class Representative does not respond to a Consent Request within the time period specified in Section 11.4 of the Base Indenture, the Control Party will be entitled (but not required) to exercise the rights of the Controlling Class Representative with respect to such Consent Request other than with respect to Control Party Termination Events.
“Copyrights” has the meaning set forth in the definition of “Intellectual Property.” “Corporate Trust Office” means the corporate trust office of the Trustee at (a) for Note
transfer purposes and presentment of the Notes for final payment thereon, Citibank, N.A., 000 Xxxxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Agency & Trust – EWC Master Issuer LLC and (b) for all other purposes, Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency & Trust – EWC Master Issuer LLC or call 0- (000) 000-0000 to obtain Citibank, N.A. account manager’s email address, or such other address as the Trustee may designate from time to time by notice to the holders, the Rating Agency and the Master Issuer or the principal corporate trust office of any successor Trustee.
“Corporate-Owned Centers” means any Center and any Future Brand store owned and operated by a Non-Securitization Entity or a Securitization Entity; provided, that with respect to any such Future Brand stores, such stores are operated in the United States.
“Covenant Adjusted EBITDA” means net income (loss) before interest, taxes, depreciation and amortization, adjusted for the impact of items that European Wax Center does not consider in its evaluation of the ongoing performance of its core operations, which adjustments may include,
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among others, (i) purchase accounting adjustments, (ii) management fees, (iii) information technology system upgrade costs, (iv) transaction fees, (v) stock offering-related costs, (vi) compensation expense, (vii) severance costs, (viii) pre-opening costs, (ix) early lease termination costs, (x) gain (loss) from the early extinguishment of indebtedness or hedging obligation, (xi) gain (loss) attributable to asset disposition, and (xii) other costs, charges and gains that European Wax Center believes does not reflect its underlying business performance.
“Cut-Off Date” is on or about April 3, 2022.
“Debt Service” means, with respect to any Quarterly Payment Date, the sum of (i) the Senior Notes Quarterly Interest Amount plus (ii) the Senior Subordinated Notes Quarterly Interest Amount plus (iii) the Class A-1 Quarterly Commitment Fee Amount plus (iv) with respect to any Class of Senior Notes Outstanding, the aggregate amount of Scheduled Principal Payments due and payable on such Quarterly Payment Date, as such Scheduled Principal Payments may be ratably reduced by the aggregate amount of any (A) payments of Indemnification Amounts, Asset Disposition Proceeds or Insurance/Condemnation Proceeds, (B) repurchases and cancellations of such Class of Notes or (C) optional prepayments of principal of such Class of Notes, but without giving effect to any reductions of Scheduled Principal Payments available due to the satisfaction of the applicable Series Non-Amortization Test. For the purposes of calculating the DSCR as of the first Quarterly Payment Date after the Closing Date, Debt Service will be deemed to be the sum of (A) the product of (x) the sum of the amounts referred to in clauses (i), (ii) and (iii) of the definition of “Debt Service” multiplied by (y) a fraction, the numerator of which is ninety (90) and the denominator of which is the actual number of days elapsed during the period commencing on and including the Closing Date and ending on but excluding the first Quarterly Payment Date after the Closing Date, plus (B) the amount referred to in clause (iv) of the definition of “Debt Service.” For purposes of determining whether a Manager Termination Event or an Event of Default has occurred, the DSCR will be calculated without any application of clause (iv) of the definition of “Debt Service” (the DSCR so calculated, the “Interest-Only DSCR”).
“Debt Service Advance” means an advance made on or prior to a Quarterly Payment Date in an amount equal to the excess of the Senior Notes Quarterly Interest Amount due on such Quarterly Payment Date over the amount on deposit in the Indenture Trust Accounts (or under the Interest Reserve Letter of Credit) that are available and required to be used to pay such amount on such Quarterly Payment Date in accordance with Section 5.14(a) of this Base Indenture.
“Debt Service Shortfall” means that, as of any Quarterly Calculation Date (after any Quarterly Reallocation Event and other reallocation of amounts pursuant to Section 5.14(a)(ii) on such date, as applicable), the funds available in the Senior Notes Interest Payment Account and the Senior Notes Interest Reserve Account (and amounts available to be drawn from any Interest Reserve Letter of Credit relating to the Senior Notes) are insufficient to pay the Senior Notes Quarterly Interest Amount due on the related Quarterly Payment Date.
“Default” means any Event of Default or any occurrence that with notice or the lapse of time or both would become an Event of Default.
“Defeased Series” has the meaning set forth in Section 12.1(c) of the Base Indenture.
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“Definitive Notes” has the meaning set forth in Section 2.12(a) of the Base Indenture. “Depository Agreement” means, with respect to a Series or Class of a Series of Notes
having Book-Entry Notes, the agreement among the Master Issuer, the Trustee and the Clearing Agency governing the deposit of such Notes with the Clearing Agency, or as otherwise provided in the applicable Series Supplement.
“Distributor” means EWC Distributor LLC, a Delaware limited liability company, and its successors and assigns.
“Distributor IP License” means the Distributor IP License, dated as of the Closing Date, by and between the Franchisor and Distributor, as amended, supplemented or otherwise modified from time to time.
“Distributor Operating Account” means one or more accounts maintained in the name of the Distributor and subject to an Account Control Agreement, into which the Manager is required to cause amounts to be deposited pursuant to Section 5.12(c) of the Base Indenture or any successor account established for the Distributor for such purpose pursuant to the Base Indenture and the Management Agreement, including any investment accounts related thereto into which funds are transferred for investment purposes pursuant to Section 5.2(b) of the Base Indenture.
“Distributor Working Capital Reserve Amount” means, as of any date of determination, an amount determined by the Manager to be retained in a Distributor Operating Account for working capital expenses not to exceed, in the aggregate for all Distributor Operating Accounts, (A) during the first four (4) Quarterly Collection Periods following the Closing Date, $7,500,000, and (B) thereafter, the greater of (i) $7,500,000 and (ii) 15% of the aggregate Product Cash Profit Amounts for the preceding four (4) Quarterly Collection Periods.
“DSCR” means, as of any Quarterly Payment Date, an amount equal to (i) the Net Cash Flow over the four (4) immediately preceding Quarterly Collection Periods, divided by (ii) the Debt Service with respect to such four (4) Quarterly Collection Periods; provided that, for purposes of calculating the DSCR as of the first three (3) Quarterly Calculation Dates, (a) “Net Cash Flow” for the Quarterly Collection Period ending in the calendar quarter ended September 25, 2021 will be deemed to be $20,311,445, “Net Cash Flow” for the Quarterly Collection Period ending in the calendar quarter ended December 25, 2021 will be deemed to be $17,061,594 and “Net Cash Flow” for the Quarterly Collection Period ending in the calendar quarter ended March 26, 2022, will be calculated by the Manager at the time of the first Quarterly Calculation Date and will be based on the financial results of EWC Ventures for the fiscal quarter ended March 26, 2022 and (b) clause
(ii) of such DSCR calculation will be deemed to equal the Debt Service measured for the most recently ended Quarterly Collection Period times four (4).
“DTC” means The Depository Trust Company and any successor thereto.
“Eligible Account” means (a) a segregated identifiable trust account established in the trust department of a Qualified Trust Institution or (b) a separately identifiable deposit or securities account established at a Qualified Institution.
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“Eligible Assets” means any asset (other than real property) useful to the Securitization Entities in the operation of their business or assets, including, without limitation, (i) capital assets, capital expenditures, renovations and improvements and (ii) assets intended to generate revenue for the Securitization Entities.
“Eligible Investments” means (a) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank or trust company that (i) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) whose short-term debt is rated at least “P-1” (or the then equivalent grade) by Xxxxx’x and at least “A-1+” (or then equivalent grade) by S&P and, if it has a short-term rating by KBRA, at least “K1” by KBRA and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with maturities of not more than one (1) year from the date of acquisition thereof; (b) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than one (1) year from the date of acquisition thereof; provided, that the full faith and credit of the United States of America is pledged in support thereof; (c) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “P-1” (or the then equivalent grade) by Xxxxx’x and at least “A-1+” (or the then equivalent grade) by S&P and, if it has a short-term rating by KBRA, at least “K1” by KBRA, with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof; (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the type described in clauses (a) and (b) above entered into with any financial institution meeting the qualifications specified in clause (a) above and (e) investments, classified in accordance with GAAP as current assets of the relevant Person making such investment, in money market investment programs registered under the 1940 Act, which have the highest rating obtainable from Xxxxx’x and S&P and, if it has a short-term rating by KBRA, at least “K1” by KBRA, and the portfolios of which are invested primarily in investments of the character, quality and maturity described in clauses (a) though (d) of this definition. Notwithstanding the foregoing, all Eligible Investments must either (A) be at all times available for withdrawal or liquidation at par (or for commercial paper issued at a discount, at the applicable purchase price) or (B) mature on or prior to the Business Day prior to the immediately succeeding Weekly Allocation Date.
“Employee Benefit Plan” means any “employee benefit plan,” as such term is defined in Section 3(3) of ERISA, established, maintained or contributed to by a Securitization Entity, or with respect to which any Securitization Entity has any liability.
“Enhancement” means, with respect to any Series of Notes, the rights and benefits provided to the Holders of such Series of Notes pursuant to any letter of credit, surety bond, cash collateral account, spread account, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap or any other similar arrangement entered into by the Master Issuer in connection with the issuance of such Series of Notes as provided for in the applicable Series Supplement in accordance with the terms of the Base Indenture or Variable Funding Note Purchase Agreement.
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“Enhancement Agreement” means any contract, agreement, instrument or document governing the terms of any Enhancement or pursuant to which any Enhancement is issued or outstanding.
“Enhancement Provider” means the Person providing any Enhancement as designated in the applicable Series Supplement or Variable Funding Note Purchase Agreement.
“Environmental Law” means any and all applicable laws, rules, orders, regulations, statutes, ordinances, binding guidelines, codes, decrees, agreements or other legally enforceable requirements (including common law) of any international authority, foreign government, the United States, or any state, local, municipal or other Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health (as it relates to exposure to Materials of Environmental Concern), or employee health and safety (as it relates to exposure to Materials of Environmental Concern), as has been, is now, or may at any time hereafter be, in effect.
“Environmental Permits” means any and all permits, licenses, approvals, registrations, notifications, exemptions and other authorizations required under any Environmental Law.
“Equity Interest” means any (a) membership interest in any limited liability company,
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
“Euroclear” means Euroclear Bank, S.A./N.V., or any successor thereto, as operator of the Euroclear System.
“European Wax Center” means European Wax Center, Inc. and its Subsidiaries. “European Wax Center Brand” means the European Wax Center® name and European
Wax Center Trademarks, whether alone or in combination with other words or symbols, and any variations or derivatives of any of the foregoing.
“European Wax Center System” means the system of centers operating under the European Wax Center Brand.
“Event of Bankruptcy” will be deemed to have occurred with respect to a Person if:
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substantial part of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding continues undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person is entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
“Event of Default” means any of the events set forth in Section 9.2 of the Base Indenture. “EWC Marketing Subsidiaries” means EWC MFund, LLC, a Florida limited liability
company, and EWC Co-Op Fund, LLC a Florida limited liability company.
“EWC Systemwide Sales” means, with respect to any Quarterly Calculation Date, gross sales from same-day services, retail sales and cash collected from Wax Passes, in each case, from all Centers in the European Wax Center System for the four (4) Quarterly Collection Periods ended immediately prior to such Quarterly Calculation Date.
“Excepted Securitization IP Assets” means (i) any right to use third-party Intellectual Property pursuant to a license to the extent such rights are not able or permitted to be pledged; and
“Excess Class A-1 Notes Administrative Expenses Amount” means, for each Weekly Allocation Date, an amount equal to the amount by which (a) the Class A-1 Notes Administrative Expenses that have become due and payable prior to such Weekly Allocation Date and have not been previously paid exceed (b) the Capped Class A-1 Notes Administrative Expenses Amount for such Weekly Allocation Date.
“Excluded Amounts” means, among other things, (i) fees and expenses paid by or on behalf of any Securitization Entity in connection with registering, maintaining and enforcing the Securitization IP, third-party licensing fees and information technology-related expenses, (ii) account expenses and fees paid to the banks at which the Management Accounts are held,
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payable by the Securitization Entities to Franchisees, (v) amounts in respect of sales Taxes and other comparable Taxes and other amounts received from Franchised Centers that are due and payable to a Governmental Authority or other unaffiliated third party, (vi) any statutory Taxes included in Collections, but required to be remitted to a Governmental Authority, (vii) amounts paid by Franchisees in respect of fees or expenses payable to unaffiliated third parties for services provided to Franchisees, (viii) amounts in respect of any commissions payable by or on behalf of any Securitization Entity to any area representatives in respect of Royalty Payments received from applicable Franchisees, (ix) amounts paid by Franchisees relating to corporate services provided by the Manager, including employee training, point-of-sale system maintenance and support, gift card and Wax Pass administration, security and maintenance of other information technology systems, to the extent such services are not provided by the Manager pursuant to the Management Agreement, (x) any amounts that are held for payment or indemnification obligations owed by the Franchisor to any third-party payment processor, (xi) any amounts that cannot be transferred to a Concentration Account due to applicable law and (xii) any other amounts deposited into any Concentration Account or otherwise included in Collections that are not required to be deposited into the Collection Account.
“Excluded IP” means (a) any commercially available, off-the-shelf, uncustomized (other than Software and system configurations) Software licensed on standard terms and conditions to or on behalf of any Non-Securitization Entity, (b) rights to any (i) Intellectual Property that arise out of any marketing, advertising, endorsement, sponsorship or other similar third-party arrangements and (ii) social media accounts, names and other identifiers, that are, in each case ((i) and (ii)), conducted and used solely locally by any Franchisees or Centers (and are not conducted across the European Wax Center System or Franchised Center Business), and (c) any Intellectual Property existing in any country other than the United States, unless the Manager, in its sole discretion, causes such Intellectual Property to be created, developed, authored or acquired by or on behalf of, or licensed from any unaffiliated third party to or on behalf of, the Franchisor or another Securitization Entity.
“Extension Period” means, with respect to any Series or any Class of any Series of Notes, the period from the Series Anticipated Repayment Date (or any previously extended Series Anticipated Repayment Date) with respect to such Series or Class to the Series Anticipated Repayment Date with respect to such Series or Class as extended in connection with the provisions of the applicable Series Supplement or, to the extent applicable, Variable Funding Note Purchase Agreement.
“FDIC” means the U.S. Federal Deposit Insurance Corporation.
“Financial Assets” has the meaning set forth in Section 5.9(b) of the Base Indenture. “Foreign Subsidiary Holding Company” has the meaning set forth in Section 3.1(a) of the
Base Indenture.
“Franchise Agreement” means a franchise agreement (including any related service or license agreement) whereby a Franchisee agrees to operate a Center.
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“Franchise Assets” means, with respect to the Franchisor, (A) the Contributed Franchise Agreements, the Contributed Multi-Unit Development Agreements, and all Royalty Payments, Franchise Fees and Other Franchisee Payments payable thereunder or in respect thereof; (B) the New Franchise Agreements, the New Multi-Unit Development Agreements and all Royalty Payments, Franchise Fees and Other Franchisee Payments payable thereunder or in respect thereof;
“Franchise Documents” means all Franchise Agreements (including master franchise agreements and related service or license agreements), Multi-Unit Development Agreements and agreements related thereto, together with any modifications, amendments, extensions or replacements of the foregoing.
“Franchise Fee” means the initial franchise fee payable by a Franchisee in connection with signing a Franchise Agreement.
“Franchised Center Business” means the business of owning and operating the Franchised Centers and the provision of ancillary goods and services in connection therewith.
“Franchised Centers” means all Centers that are owned and operated by a Franchisee that is unaffiliated with the Franchisor and its Affiliates.
“Franchisee” means any Person that is a franchisee under a Franchise Agreement. “Franchisee Payments” means all amounts payable to a Securitization Entity by
Franchisees, whether directly or indirectly, pursuant to the Franchise Documents, including Royalty Payments and Other Franchisee Payments, but excluding Excluded Amounts.
“Franchisor” means EWC Franchisor LLC, a Delaware limited liability company, and its successors and assigns.
“Franchisor Capital Account” means the account maintained in the name of the Franchisor and any Additional Securitization Entity that from time to time acts as the franchisor with respect to New Franchise Agreements and New Multi-Unit Development Agreements, as applicable, into which such Securitization Entity causes amounts to be deposited pursuant to Section 5.2(d) of the Base Indenture or any successor account established by such Securitization Entity for such purpose pursuant to the Base Indenture.
“Future Brand” means any name or Trademark (including any Trademarks related to, based on or derivative thereof, but excluding the European Wax Center Brand or any Trademark owned by the Securitization Entities as of the Closing Date) that (i) is acquired or developed by Holdco or any of its Subsidiaries and subsequently contributed to one or more Securitization Entities in a manner consistent with the terms of the Related Documents or (ii) that is acquired or developed
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by the Master Issuer or any one or more Securitization Entities in a manner consistent with the terms of the Related Documents.
“GAAP” means the generally accepted accounting principles in the United States promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors in effect from time to time; provided that, for purposes of computing the Holdco Leverage Ratio (including any financial and accounting terms included in the components thereof), or determining whether an obligation constitutes a Capitalized Lease Obligation, GAAP shall mean generally accepted accounting principles in the United States promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors in effect on the Closing Date.
“Government Securities” means readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof and as to which obligations the full faith and credit of the United States of America is pledged in support thereof.
“Governmental Authority” means the government of the United States of America or any other nation or any political subdivision of the foregoing, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be (i) with respect to a Guarantee pursuant to clause (a) above, an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith or (ii) with respect to a Guarantee pursuant to clause (b) above, the fair market value of the assets subject to (or that could be subject to) the related Lien. The term “Guarantee” as a verb has a corresponding meaning.
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“Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement, dated as of the Closing Date, by and among the Guarantors in favor of the Trustee, as amended, supplemented or otherwise modified from time to time.
“Guarantors” means the Subsidiary Guarantors and the Holding Company Guarantor. “Hague Securities Convention” means the Hague Convention on the Law Applicable to
Certain Rights in Respect of Securities Held with an Intermediary, concluded 5 July 2006.
“Hedge Counterparty” means an institution that enters into a Swap Contract with one or more Securitization Entities to provide certain financial protections with respect to changes in interest rates applicable to a Series of Notes if and as specified in the applicable Series Supplement.
“Hedge Payment Account” means an account entitled “Citibank, N.A. f/b/o EWC Master Issuer LLC, Hedge Payment Account”, which account is required to be maintained by the Trustee pursuant to Section 5.9 of the Base Indenture or any successor securities account required to be maintained pursuant to Section 5.9 of the Base Indenture.
“Holdco” means European Wax Center, Inc., a Delaware corporation, and its successors and assigns.
“Holdco Leverage Ratio” means, as of any date of determination, the ratio of (a)(i) Indebtedness of the Non-Securitization Entities and the Securitization Entities (assuming that amounts available under each Class A-1 Note at such time (after giving effect to any commitment reductions on such date) are fully drawn) as of the end of the most recently ended Quarterly Fiscal Period less (ii) the sum of (v) the cash and Eligible Investments of the Securitization Entities credited to the Senior Notes Interest Reserve Account, the Senior Subordinated Notes Interest Reserve Account, the Cash Trap Reserve Account, the Advance Funding Reserve Account and the Franchisor Capital Accounts as of the end of the most recently ended Quarterly Fiscal Period, (w) the cash and Eligible Investments of the Securitization Entities maintained in the Management Accounts as of the end of the most recently ended Quarterly Fiscal Period that the Manager reasonably anticipates, pursuant to calculations set forth in a certificate delivered by the Manager to the Trustee on or prior to such date, will be paid to the Manager or constitute the Residual Amount on the next two succeeding Weekly Allocation Dates, (x) the Unrestricted Cash and Eligible Investments of the Non-Securitization Entities as of the end of the most recently ended Quarterly Fiscal Period, (y) without duplication, the amount available under any Cash Collateralized Letters of Credit and (z) without duplication, the available amount of each Interest Reserve Letter of Credit as of the end of the most recently ended Quarterly Fiscal Period to (b) the sum of the Covenant Adjusted EBITDA of the Non-Securitization Entities and the Securitization Entities, for the immediately preceding four (4) Quarterly Fiscal Periods most recently ended as of such date and for which financial statements have been finalized. The Holdco Leverage Ratio shall be calculated in accordance with Section 14.18(a) of the Base Indenture.
“Holder” means each Noteholder and, to the extent Notes are held through a Clearing Agency, each Note Owner.
“Holding Company Guarantor” means EWC Holding Guarantor LLC, a Delaware limited liability company, and its successors and assigns.
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“Hot Back-Up Management Duties” has the meaning set forth in the Back-Up Management Agreement.
“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Improvements” means, with respect to Intellectual Property, proprietary rights in any additions, modifications, derivatives, developments, variations, refinements, enhancements or improvements that are derivative works as defined and recognized by applicable Requirements of Law or, with respect to real estate, the buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the real property constituting a part of each property.
“Indebtedness” means, as to any Person as of any date, without duplication, (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all Capitalized Lease Obligations of such Person, (c) the net obligations of such Person under any swap contract, (d) all obligations of such Person to pay the deferred purchase price of property or services (other than
“Indemnification Amount” means, with respect to any Franchise Asset or Securitized Supply Agreement (and any related Product Revenue Payments) an amount equal to the Allocated Note Amount for such asset and with respect to any Securitization IP, any amount required to reimburse the applicable Securitization Entity for the expenses related to defending or enforcing its rights in such Securitization IP.
“Indemnification Amounts Threshold Amount” means, for any date of determination, (i) if the Threshold DSCR is greater than or equal to 2.75x, $1,000,000 and (ii) otherwise, $500,000.
“Indemnitor” means EWC Ventures, as the Manager or in its individual capacity, or any other Non-Securitization Entity.
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“Indenture” means the Base Indenture, together with all Series Supplements, as amended, supplemented or otherwise modified from time to time by Supplements thereto in accordance with its terms.
“Indenture Collateral” has the meaning set forth in Section 3.1 of the Base Indenture. “Indenture Documents” means, collectively, with respect to any Series of Notes, the Base
Indenture, the related Series Supplement, the Notes of such Series, the Guarantee and Collateral Agreement, the related Account Control Agreements, any related Variable Funding Note Purchase Agreement and any other agreements relating to the issuance or the purchase of the Notes of such Series or the pledge of Collateral under any of the foregoing.
“Indenture Trust Accounts” means each of the Collection Account, the Collection Account Administrative Accounts, the Senior Notes Interest Reserve Account (which may also, at the election of the Manager, serve as a Franchisor Capital Account), the Senior Subordinated Notes Interest Reserve Account, the Cash Trap Reserve Account, the Advance Funding Reserve Account, the Hedge Payment Account, the Series Distribution Accounts and such other accounts as the Master Issuer may establish with the Trustee or the Trustee may establish from time to time pursuant to its authority to establish additional accounts pursuant to the Indenture.
“Independent” means, as to any Person, any other Person (including, in the case of an accountant, or lawyer, a firm of accountants or lawyers and any member thereof or an investment bank and any member thereof) who (i) does not have and is not committed to acquire any material direct or any material indirect financial interest in such Person or in any Affiliate of such Person and (ii) is not connected with such Person or an Affiliate of such Person as an officer, employee, promoter, underwriter, voting trustee, partner, director or Person performing similar functions. “Independent” when used with respect to any accountant may include an accountant who audits the books of such Person if, in addition to satisfying the criteria set forth above, the accountant is independent with respect to such Person within the meaning of Rule 101 of the Code of Ethics of the American Institute of Certified Public Accountants. Whenever any Independent Person’s opinion or certificate is to be furnished to the Trustee, such opinion or certificate shall state that the signer has read this definition and that the signer is Independent within the meaning hereof.
“Independent Auditors” means the firm of Independent accountants appointed pursuant to the Management Agreement or any successor Independent accountant.
“Independent Manager” means, with respect to any corporation, partnership, limited liability company, association or other business entity, an individual who has prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and who is provided by Corporation Service Company, CT Corporation, Global Securitization Services, LLC, Lord Securities Corporation, National Registered Agents, Inc., Xxxxxxx Management Company, Wilmington Trust Company, or, if none of those companies is then providing professional independent managers, another nationally recognized company reasonably approved by the Trustee, in each case that is not an Affiliate of the company and that provides professional independent managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following
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Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following:
A natural Person who otherwise satisfies the foregoing definition and satisfies subparagraph (i) by reason of being the Independent Manager (or independent manager or director) of a “special purpose entity” which is an Affiliate of the company shall be qualified to serve as an Independent Manager of the company, provided that the fees that such individual earns from serving as Independent Manager (or independent manager or director) of any Affiliate of the company in any given year constitute in the aggregate less than five percent (5.0%) of such individual’s annual income for that year.
“Ineligible Account” has the meaning set forth in Section 5.20 of the Base Indenture. “Ineligible Interest Reserve Letter of Credit” means an Interest Reserve Letter of Credit
with respect to which (i) the short-term debt credit rating of the L/C Provider with respect to such Interest Reserve Letter of Credit is withdrawn or downgraded by S&P and, if it has a rating by KBRA, KBRA below “A-2” or (ii) the long-term debt credit rating of such L/C Provider is withdrawn or downgraded by S&P and, if it has a rating by KBRA, KBRA below “BBB”.
“Initial Principal Amount” means, with respect to any Series or Class (or Subclass) of Notes, the aggregate initial principal amount of such Series or Class (or Subclass) of Notes specified in the applicable Series Supplement.
“Initial Senior Notes Interest Reserve Amount” means, with respect to the Notes issued on the Closing Date, an amount equal to $● million to be deposited into the Senior Notes Interest Reserve Account and/or arranged for issuance as an Interest Reserve Letter of Credit by the Master Issuer.
“Insolvency” means liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization or conservation; and, when used as an adjective, “Insolvent.”
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“Insurance/Condemnation Proceeds” means an amount equal to: (i) any cash payments or proceeds received by the Securitization Entities (a) by reason of theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Securitization Entities under any policy of insurance (other than liability insurance) in respect of a covered loss thereunder or (b) as a result of any non-temporary condemnation, taking, seizing or similar event with respect to any properties or assets of the Securitization Entities by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking minus (ii)(a) any actual and reasonable costs incurred by the Securitization Entities in connection with the adjustment or settlement of any claims of the Securitization Entities in respect thereof and (b) any bona fide direct costs incurred in connection with any disposition of such assets as referred to in clause (i)(b) of this definition, including Taxes (or distributions to a direct or indirect parent for Taxes) paid or reasonably expected to be actually payable with respect to the Securitization Entities’ consolidated group as a result of any gain recognized in connection therewith. For the avoidance of doubt, “Insurance/Condemnation Proceeds” shall not include any proceeds of policies of insurance not described above, such as business interruption insurance and other insurance procured in the ordinary course of business, which shall be treated as Collections.
“Insurance/Condemnation Proceeds Threshold Amount” means, with respect to any Insurance/Condemnation Proceeds, for any date of determination, (i) if the Threshold DSCR is greater than or equal to 2.75x, $1,500,000 and (ii) otherwise, $1,000,000.
“Insurance Proceeds Account” means the account maintained in the name of the Master Issuer, subject to an Account Control Agreement and pledged to the Trustee, into which the Manager is required to cause Insurance/Condemnation Proceeds to be deposited.
“Intellectual Property” or “IP” means all rights, title and interests in and to intellectual property of any type throughout the world, including: (i) Trademarks; (ii) Patents; (iii) rights in computer programs and mobile apps, including in both source code and object code therefor, together with related documentation and explanatory materials and databases, including any Copyrights (as defined below), Patents and Trade Secrets (as defined below) therein (“Software”);
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“Interest Accrual Period” means (a) solely with respect to any Series of Class A-1 Notes of any Series of Notes, a period commencing on and including the day that is two (2) Business Days prior to a Quarterly Calculation Date and ending on but excluding the day that is two (2) Business Days prior to the next succeeding Quarterly Calculation Date and (b) with respect to any other Class of Notes of any Series of Notes, the period from and including the fifteenth (15th) day of the calendar month in which the immediately preceding Quarterly Payment Date occurred to but excluding the fifteenth (15th) day of the calendar month which includes the then-current Quarterly Payment Date (in each case, without giving effect to any Business Day adjustment); provided, however, that the initial Interest Accrual Period for any Series will commence on and include the Series Closing Date and end on the date specified above, unless otherwise specified in the applicable Series Supplement; provided, further, that the Interest Accrual Period, with respect to each Series of Notes Outstanding, immediately preceding the Quarterly Payment Date on which the last payment on the Notes of such Series is to be made will end on such Quarterly Payment Date.
“Interest-Only DSCR” has the meaning assigned to such term under the definition of “Debt Service.”
“Interest Reserve Letter of Credit” means any letter of credit issued under a Variable Funding Note Purchase Agreement for the benefit of the Trustee and the Senior Noteholders or the Senior Subordinated Noteholders, as applicable.
“Interest Reserve Release Event” means, as of any date of determination, and with respect to each Series of Senior Notes or Senior Subordinated Notes Outstanding, as applicable, any reduction in (i) the Class A-1 Notes Maximum Principal Amount or (ii) the Outstanding Principal Amount of such Series of Notes, disregarding any Series of Class A-1 Notes.
“Interim Successor Manager” means, upon the resignation or termination of the Manager pursuant to the terms of the Management Agreement and prior to the appointment of any successor to the Manager by the Control Party (acting at the direction of the Controlling Class Representative), the Back-Up Manager.
“Investment Income” means the investment income earned on a specified account during a specified period, in each case net of all losses and expenses allocable thereto.
“Investments” means, with respect to any Person(s), all investments by such Person(s) in other Persons in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, travel, moving and other similar advances to officers, directors, employees and consultants of such Person(s) (including Affiliates) made in the ordinary course of business) and purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person.
“IP License Agreements” means the Manager IP License, the Distributor IP License, and any Non-Securitization Entity IP Sublicense.
“IRS” means the U.S. Internal Revenue Service.
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“KBRA” means Xxxxx Bond Rating Agency, LLC, or any successor thereto.
“L/C Provider” means, with respect to any Series of Class A-1 Notes, the party identified as the “L/C Provider” or the “L/C Issuing Bank,” as the context requires, in the applicable Variable Funding Note Purchase Agreement.
“Leadership Team” means the “executive officers” (as defined in Rule 3b-7 of the 0000 Xxx) of Holdco immediately prior to the date of the occurrence of a Change of Control.
“Legacy Account” means, on or after the date that any Class or Series of Notes issued pursuant to the Base Indenture is no longer Outstanding, any account maintained by the Trustee to which funds have been allocated in accordance with the Priority of Payments for the payment of interest, fees or other amounts in respect of such Class or Series of Notes.
“Letter of Credit Reimbursement Agreement” means (i) the Letter of Credit Reimbursement Agreement, dated as of the Closing Date, by and among Holdco, the Manager and the Master Issuer, as amended, supplemented or otherwise modified from time to time and (ii) any additional or replacement letter of credit reimbursement agreement entered into with the consent of the Control Party.
“Licensed Securitization IP” means (a) the portion of the Closing Date Securitization IP that is held or used by EWC Ventures, the Holding Company Guarantor, the Master Issuer, or the Franchisor as of the Closing Date pursuant to any license or grant to such foregoing Person or any similar arrangement with respect thereto; and (b) the portion of After-Acquired Securitization IP that, after the Closing Date, will be held or used by Franchisor pursuant to any license or grant to such foregoing Person or any similar arrangement with respect thereto.
“Licensee-Developed IP” means all Intellectual Property (other than Excluded IP) created, developed, authored, acquired or owned by or on behalf of any licensee under any IP License Agreement or Franchise Agreement related to (i) the European Wax Center Brand, (ii) products or services sold or distributed under the European Wax Center Brand, (iii) Centers, (iv) the European Wax Center System, (v) the Franchised Center Business, or (vi) the Retained Corporate-Owned Center Business, and all goodwill appurtenant thereto, including, without limitation, all Improvements to any Securitization IP.
“Lien” means, when used with respect to any Person, any interest in any real or personal property, asset or other right held, owned or being purchased or acquired by such Person which secures payment or performance of any obligation, and will include any mortgage, lien, pledge, encumbrance, charge, retained security title of a conditional vendor or lessor, or other security interest of any kind, whether arising under a security agreement, mortgage, lease, deed of trust, chattel mortgage, assignment, pledge, retention or security title, financing or similar statement, or arising as a matter of law, judicial process or otherwise.
“Liquidation Fees” has the meaning set forth in the Control Party Agreement.
“Majority of Controlling Class Members” means, (x) except as set forth in clause (y), with respect to the Controlling Class Members (or, if specified, any subset thereof) and as of any day of determination, Controlling Class Members that hold in excess of 50% of the sum of (i) the Class
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“Management Accounts” means, collectively, the Franchisor Capital Accounts, the Concentration Accounts, the Distributor Operating Account, the Asset Disposition Proceeds Account, the Insurance Proceeds Account, and such other accounts as may be established by the Manager from time to time pursuant to the Management Agreement that the Manager designates as a “Management Account” for purposes of the Management Agreement.
“Management Agreement” means the Management Agreement, dated as of the Closing Date, by and among the Securitization Entities, the Trustee and the Manager, as amended, supplemented or otherwise modified from time to time.
“Management Fee” has the meaning set forth in the Management Agreement.
“Manager” means EWC Ventures, as Manager, under the Management Agreement, and any successor thereto.
“Manager Advances” has the meaning set forth in the Management Agreement. “Manager Deposit Requirements” has the meaning set forth in the Management Agreement. “Manager-Developed IP” means all Intellectual Property (other than Excluded IP) created,
developed, authored, acquired or owned by or on behalf of the Manager related to or intended to be used by (i) the European Wax Center Brand, (ii) products or services sold or distributed under the European Wax Center Brand, (iii) Centers, (iv) the European Wax Center System, or (v) the Franchised Center Business, including without limitation all Improvements to any Securitization IP.
“Manager IP License” means the Manager IP License, dated as of the Closing Date, by and between the Franchisor, as licensor, and Manager, as licensee, as amended, supplemented or otherwise modified from time to time.
“Manager Termination Event” means the occurrence of an event specified in Section 7.1 of the Management Agreement.
“Managing Standard” has the meaning set forth in the Management Agreement.
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“Marketing Fund Account” means one or more accounts designated by the Manager as a marketing fund account in the name of the EWC Marketing Subsidiaries for the receipt of Marketing Fund Contributions.
“Marketing Fund Contributions” means fees payable in respect of Franchised Centers and Retained Corporate-Owned Centers to fund the national marketing and advertising activities with respect to the European Wax Center Brand (including, with respect to EWC MFund, LLC, search engine optimization fees).
“Master Issuer” means EWC Master Issuer LLC, a Delaware limited liability company, and its successors and assigns.
“Material Adverse Effect” means
provided that where “Material Adverse Effect” is used without specific reference, such term will have the meaning specified in clauses (a) through (d), as the context may require.
“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products (virgin or unused), polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity and any other materials or substances of any kind, whether or not any such material or substance is defined as hazardous or toxic under any Environmental Law, that is regulated pursuant to or could reasonably be expected to give rise to liability under any Environmental Law.
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“Maximum Advance Amount” means an amount equal to the “Commitment” under the Advance Funding Agreement.
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor thereto. “Multiemployer Plan” means any Plan that is a “multiemployer plan” as defined in Section
3(37) or Section 4001(a)(3) of ERISA.
“Multi-Unit Development Agreements” means all area agreements for Franchised Centers pursuant to which a Franchisee, developer or other Person obtains the rights to develop (in order to operate as a Franchisee) one or more Franchised Centers within a designated geographical area.
“Net Cash Flow” means, except as described in the definition of “DSCR” for the first four
provided that funds released from the Cash Trap Reserve Account, the Advance Funding Reserve Account, the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account shall not constitute Retained Collections for purposes of this definition.
“New Contributed Assets” means any assets contributed by the Manager to any Securitization Entity after the Closing Date.
“New Franchise Agreements” means all Franchise Agreements and related guaranty agreements contributed to, or otherwise entered into or acquired by, a Securitization Entity following the Closing Date, in its capacity as franchisor for Centers (including all renewals with respect to Contributed Franchise Agreements).
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“New Multi-Unit Development Agreements” means all Multi-Unit Development Agreements and related guaranty agreements contributed to, or otherwise entered into or acquired by, any Securitization Entity following the Closing Date.
“New Securitized Supply Agreements” means all Supply Agreements that are acquired or entered into by a Securitization Entity after the Closing Date.
“New Series Pro Forma DSCR” means, at any time of determination and with respect to the issuance of any Additional Notes, the ratio calculated by dividing (i) the Net Cash Flow over the four immediately preceding Quarterly Collection Periods most recently ended by (ii) the Debt Service due during such period, in each case on a pro forma basis, calculated as if (a) such Additional Notes had been outstanding and any assets acquired with the proceeds of such Additional Notes had been acquired at the commencement of such period, and (b) any Notes that have been paid, prepaid or repurchased and cancelled during such period, or any Notes that will be paid, prepaid or repurchased and cancelled using the proceeds of such issuance, were so paid, prepaid or repurchased and cancelled as of the commencement of such period.
“New York UCC” has the meaning set forth in Section 5.9(b) of the Base Indenture. “Non-Securitization Entity” means Holdco and each of its Affiliates (including each of
their Subsidiaries, but excluding any Securitization Entity) now existing or hereafter created.
“Non-Securitization Entity IP Sublicense” means that certain Non-Securitization Entity Sublicense, dated as of the Closing Date, by and between the Manager, as licensor, and the other Non-Securitization Entities party to such agreement, as licensee, as amended, supplemented or otherwise modified from time to time.
“Note Owner” means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency that holds such Book-Entry Note, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Note Owner Certificate” has the meaning specified in Section 11.5(b) of the Base Indenture.
“Note Rate” means, with respect to any Series or any Class, Subclass or Tranche of any Series of Notes, the annual rate at which interest (other than contingent additional interest) accrues on the Notes of such Series or such Class, Subclass or Tranche of such Series of Notes (or the formula on the basis of which such rate will be determined) as stated in the applicable Series Supplement.
“Note Register” means the register maintained pursuant to Section 2.5(a) of the Base Indenture, providing for the registration of the Notes and transfers and exchanges thereof, subject to such reasonable regulations as the Master Issuer may prescribe.
“Noteholder” means the Person in whose name a Note is registered in the Note Register.
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“Notes” has the meaning specified in the recitals to the Base Indenture.
“Notes Discharge Date” means, with respect to any Class or Series of Notes, the first date on which such Class or Series of Notes is no longer Outstanding.
“Obligations” means (a) all principal, interest and premium, if any, at any time and from time to time, owing by the Master Issuer on the Notes or owing by the Guarantors pursuant to the Guarantee and Collateral Agreement, (b) the payment and performance of all other obligations, covenants and liabilities of the Master Issuer or the Guarantors arising under the Indenture, the Notes, any other Indenture Document, the Control Party Agreement, the Back-Up Management Agreement, the Advance Funding Agreement or of the Guarantors under the Guarantee and Collateral Agreement and (c) the obligation of the Master Issuer to pay to the Trustee all fees and expenses payable to the Trustee under the Indenture and the other Related Documents to which it is a party when due and payable as provided in the Indenture.
“Officer’s Certificate” means a certificate signed by an Authorized Officer of the party delivering such certificate.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee and the Control Party. The counsel may be an employee of, or counsel to, the Securitization Entities, Holdco, the Manager or the Back-Up Manager, as the case may be.
“Other Franchisee Payments” means any amounts other than Royalty Payments or Retained Corporate-Owned Center IP License Fees that are payable by any Franchisee, or by any Non-Securitization Entity in respect of a Retained Corporate-Owned Center, to the Franchisor, including technology fees (including, without limitation, point-of-sale system fees and security fees), transfer and renewal fees and fees payable in connection with new Franchise Agreements or Multi-Unit Development Agreements.
“Outstanding” means, with respect to the Notes, as of any time, all of the Notes of any one or more Series, as the case may be, theretofore authenticated and delivered (or registered, in the case of Uncertificated Notes) under the Indenture except:
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provided that, (A) in determining whether the Noteholders of the requisite Outstanding Principal Amount have given any request, demand, authorization, direction, notice, consent, waiver or vote under the Indenture, the following Notes shall be disregarded and deemed not to be Outstanding:
(x) Notes owned by the Securitization Entities or any other obligor upon the Notes or any Affiliate of any of them and (y) Notes held in any accounts with respect to which the Manager or any Affiliate thereof exercises discretionary voting authority; provided, further, that in determining whether the Control Party or the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or vote, only Notes as described under clause (x) or (y) above that a Trust Officer or the Trustee has actual knowledge or an Authorized Officer of the Control Party, as applicable, actually knows to be so owned shall be so disregarded; and (B) Notes owned in the manner indicated in clause (x) or (y) above that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not a Securitization Entity or any other obligor or the Manager, an Affiliate thereof, or an account for which the Manager or an Affiliate of the Manager exercises discretionary voting authority.
“Outstanding Principal Amount” means, with respect to each Series of Notes, the amount calculated in accordance with the applicable Series Supplement or Variable Funding Note Purchase Agreement, which amount with respect to any Series of Class A-1 Notes may include outstanding amounts under letter of credit subfacilities thereunder.
“Owned Securitization IP” means (a) the portion of the Closing Date Securitization IP that is owned by EWC Ventures, the Holding Company Guarantor, the Master Issuer, or the Franchisor as of the Closing Date; and (b) the portion of the After-Acquired Securitization IP that, after the Closing Date, will be owned by the Franchisor.
“Parent Company Support Agreement” means that certain Parent Company Support Agreement, dated the Closing Date, by Holdco in favor of the Trustee, as amended, modified or supplemented from time to time.
“Patents” means United States and non-U.S. patents (including, during the term of the patent, the inventions claimed thereunder), patent disclosures, industrial designs, inventions (whether or not patentable or reduced to practice), invention disclosures, and applications, divisions, continuations, continuations-in-part, provisionals, reexaminations and reissues for any of the foregoing.
“Paying Agent” has the meaning specified in Section 2.5(a) of the Base Indenture. “PBGC” means the Pension Benefit Guaranty Corporation established under Section 4002
of ERISA.
“Permitted Asset Dispositions” has the meaning set forth in Section 8.16 of the Base Indenture.
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“Permitted Lien” means (a) Liens for (i) Taxes, assessments or other governmental charges not delinquent or (ii) Taxes, assessments or other charges being contested in good faith and by appropriate proceedings and with respect to which adequate reserves have been established, and are being maintained, in accordance with GAAP, (b) all Liens created or permitted under the Related Documents in favor of the Trustee for the benefit of the Secured Parties, (c) Liens existing on the Closing Date, which shall be released on such date, provided that Intellectual Property recordations of Liens need not have been terminated of record on the Closing Date so long as such Intellectual Property recordations of Liens are terminated of record within sixty (60) days of the Closing Date, (d) encumbrances in the nature of (i) a lessor’s fee interest, (ii) zoning, building code and similar laws or rights reserved or vested in any Governmental Authority to control or regulate the use of any real property, (iii) easements, rights-of-way, covenants, restrictions and other title matters shown by the public records, (iv) overlaps, encroachments and any matters not of record which would be disclosed by an accurate survey or a personal inspection of the property, and (v) conditions, encroachments, protrusions and other similar charges and encumbrances and minor defects in title and survey affecting real property which, in each case (as described in clauses (d)(i) through (v) above), individually or in the aggregate, do not materially detract from the value of the affected property, or impair the use thereof, or materially interfere with the ordinary conduct of the business of any Securitization Entity, (e) deposits or pledges made (i) in connection with casualty insurance maintained in accordance with the Related Documents, (ii) to secure the performance of bids, tenders, contracts or leases, (iii) to secure statutory obligations or surety or appeal bonds or (iv) to secure indemnity, performance or other similar bonds in the ordinary course of business of any Securitization Entity, (f) statutory or common law Liens of landlords, lessors, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business, in each case securing obligations (i) that are not yet due and payable or not overdue for more than forty-five (45) days from the date of creation thereof or (ii) being contested in good faith by any Securitization Entity in appropriate proceedings (so long as such Securitization Entity shall, in accordance with GAAP, have set aside on its books adequate reserves with respect thereto), (g) restrictions under federal, state or foreign securities laws on the transfer of securities, (h) any Liens arising under law or pursuant to documentation governing permitted accounts in connection with the Securitization Entities’ cash management system (including credit card and processing arrangements), (i) Liens arising from judgment, decrees or attachments in circumstances not constituting an Event of Default, (j) Liens arising in connection with any Capitalized Lease Obligations, sale-leaseback transaction or in connection with any Indebtedness, in each case that is permitted under the Indenture, (k) Liens not securing Indebtedness that attach to any Collateral in an aggregate outstanding amount not exceeding
$5,000,000 at any time, (l) Liens on Collateral that has been pledged pursuant to a Variable Funding Note Purchase Agreement with respect to letters of credit issued thereunder, and (m) any encumbrance on Securitization IP created by entering into (i) any licenses of Securitization IP under the IP License Agreements and to the Manager in connection with the performance of its Services under the Management Agreement and (ii) other non-exclusive licenses of Securitization IP (A) granted in the ordinary course of business, (B) that when effected on behalf of any Securitization Entity by the Manager would not constitute a breach by the Manager of the Management Agreement and (C) that would not reasonably be expected to materially and adversely impact the Securitization IP (taken as a whole).
“Permitted Recipient Certification” means a confirmation in the form of Exhibit D to the effect that such party (i) is a Permitted Recipient, (ii) understands that the materials contain
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confidential information, (iii) is requesting the information solely for use in evaluating such party’s investment or potential investment, as applicable, in the Notes (or is otherwise a Permitted Recipient) and will keep such information strictly confidential (provided, however, (x) such materials have not been filed or furnished with the SEC and are not otherwise publicly available and (y) that such party may disclose such information only (A) to (1) those personnel employed by it who need to know such information, (2) its attorneys and outside auditors which have agreed to keep such information confidential and to treat such information as confidential information, or
(3) a regulatory or self-regulatory authority pursuant to Requirements of Law or (B) by judicial process; provided, that it may disclose to any and all Persons without limitation of any kind, the tax treatment and tax structure of the transaction and any related tax strategies to the extent necessary to prevent the transaction from being described as a “confidential transaction” under
U.S. Treasury Regulations Section 1.6011-4(b)(3)), and (iv) is not a Competitor or a Tax- Restricted Affiliate. Notwithstanding the foregoing, a recipient of such materials may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions and any related tax strategies to the extent necessary to prevent the transaction from being described as a “confidential transaction” under U.S. Treasury Regulations Section 1.6011- 4(b)(3).
“Permitted Recipients” means the Holders and prospective noteholders, the Manager, the Back-Up Manager, the Control Party and third-party investor diligence or service providers (including, without limitation, Bloomberg and Intex).
“Person” means an individual, corporation (including a business trust), partnership, limited liability partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated association or government or any agency or political subdivision thereof.
“Plan” means (i) any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (ii) any “plan” (as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code and (iii) any entity whose underlying assets are deemed to include assets of a plan described in (i) or (ii) for purposes of Title I of ERISA and/or Section 4975 of the Code.
“Post-ARD Contingent Interest” means any Senior Notes Quarterly Post-ARD Contingent Interest Amount, Senior Subordinated Notes Quarterly Post-ARD Contingent Interest Amount and Subordinated Notes Quarterly Post-ARD Contingent Interest Amount.
“Post-ARD Rapid Amortization Cure Period” has the meaning set forth in Section 9.1 of the Base Indenture.
“Potential Manager Termination Event” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Manager Termination Event.
“Potential Rapid Amortization Event” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Rapid Amortization Event; provided that any occurrence or event which, with the giving of notice, the passage of time or both,
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would constitute a Rapid Amortization Event as described in clause (e) of the definition of Rapid Amortization Event, shall not constitute a Potential Rapid Amortization Event.
“Prime Rate” means, for any day, the per annum rate of interest for such day that is published as the ‘prime rate’ in (i) the Wall Street Journal or (ii) if for any reason such rate is no longer published in the Wall Street Journal, such source as the Manager and the Advance Funding Administrative Agent shall select in accordance with the Managing Standard.
“Principal Release Amount” means, with respect to any Series and any Quarterly Payment Date on which the related Series Non-Amortization Test is satisfied in accordance with the applicable Series Supplement, all or part of the amounts allocated with respect to such Scheduled Principal Payment to the applicable Collection Account Administrative Account pursuant to the Priority of Payments during the immediately preceding Quarterly Collection Period which the Master Issuer does not elect to make as a Scheduled Principal Payment with respect to such Series on such Quarterly Payment Date.
“Principal Terms” has the meaning specified in Section 2.3 of the Base Indenture. “Priority of Payments” means the allocation and payment obligations described in
Section 5.13 and Section 5.14 of the Base Indenture as supplemented by the allocation and payment obligations with respect to each Series of Notes described in each Series Supplement.
“pro forma event” has the meaning set forth in Section 14.18 of the Base Indenture. “Proceeding” means any suit in equity, action at law or other judicial or administrative
proceeding.
“Proceeds” has the meaning specified in Section 9-102(a)(64) of the applicable UCC. “Product Cash Profit Amount” means, with respect to any Weekly Collection Period, the
amount (not less than zero) equal to (a) Product Revenue Payments over such period, minus (b) all Product Costs paid in cash out of funds in deposit in the Distributor Operating Account in connection with the sale of Wax Supplies and Branded Products over such period.
“Product Costs” means, collectively, operating expenses that are incurred by or allocated to, in accordance with the Managing Standard, the Distributor in the ordinary course of business relating to the operation of the Distributor, such as the cost of goods sold (including all payments for the purchase of Wax Supplies and Branded Products under Securitized Supply Agreements or otherwise), freight costs, insurance (including self-insurance), any advertising expenses, rebates payable in connection with purchases of Wax Supplies and Branded Products, litigation and settlement costs relating to the Securitized Assets and other operating costs included in cost of sales.
“Product Revenue Payments” means all amounts payable by Franchisees and Non- Securitization Entities in respect of any Retained Corporate-Owned Centers and retail consumers for the purchase of Wax Supplies and Branded Products.
“PTO” means the U.S. Patent and Trademark Office and any successor U.S. federal office.
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“Qualified Institution” means a depository institution organized under the laws of the United States of America or any state thereof or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States of America or any state thereof and subject to supervision and examination by federal or state banking authorities that at all times has the Required Rating and, in the case of any such institution organized under the laws of the United States of America, whose deposits are insured by the FDIC.
“Qualified Trust Institution” means an institution organized under the laws of the United States of America or any state thereof or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States of America or any state thereof and subject to supervision and examination by federal or state banking authorities that at all times (i) is authorized under such laws to act as a trustee or in any other fiduciary capacity, (ii) has capital, surplus and undivided profits of not less than $250,000,000 as set forth in its most recent published annual report of condition and (iii) has a long term deposits rating of not less than “Baa1” by Moody’s and “BBB+” by S&P or KBRA.
“Quarterly Calculation Date” means the date four (4) Business Days prior to each Quarterly Payment Date.
“Quarterly Collection Period” means each period commencing on, and including the first day of a Quarterly Fiscal Period and ending on, but excluding the first day of the immediately following Quarterly Fiscal Period. The first Quarterly Period shall be the period from the Closing Date to and including June 25, 2022.
“Quarterly Compliance Certificate” has the meaning specified in Section 4.1(c) of the Base Indenture.
“Quarterly Fiscal Period” means the following quarterly fiscal periods of the Securitization Entities: (a) with respect to each of the Securitization Entities’ 52-week fiscal years, four 13-week quarters and (b) with respect to each of the Securitization Entities’ 53-week fiscal years, three 13- week quarters followed by one 14-week quarter. The last day of the fourth Quarterly Fiscal Period of each fiscal year of the Securitization Entities is the Saturday closest to December 31. References to “weeks” mean the Securitization Entities’ fiscal weeks, which commence on and include each Sunday of a week and end on but exclude Sunday of the following week.
“Quarterly Noteholders’ Report” means, with respect to any Series of Notes, a statement substantially in the form of an Exhibit C to the applicable Series Supplement, including the Manager’s statement specified in such exhibit.
“Quarterly Payment Date” means, unless otherwise specified in any Series Supplement for the related Series of Notes, the fifteenth (15th) day of each March, June, September and December, or if such day is not a Business Day, the next succeeding Business Day, commencing on the Quarterly Payment Date in September 2022. Any reference to a Quarterly Collection Period relating to a Quarterly Payment Date means the Quarterly Collection Period most recently ended prior to such Quarterly Payment Date, and any reference to an Interest Accrual Period relating to a Quarterly Payment Date means the Interest Accrual Period most recently ended prior to such Quarterly Payment Date.
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“Rapid Amortization DSCR Threshold” means a DSCR equal to 1.20x.
“Rapid Amortization Event” has the meaning specified in Section 9.1 of the Base Indenture.
“Rapid Amortization Period” means the period commencing on the date on which a Rapid Amortization Event occurs and ending on the earlier to occur of the waiver of the occurrence of such Rapid Amortization Event in accordance with Section 9.7 of the Base Indenture and the date on which there are no Notes Outstanding.
“Rating Agency” means KBRA and any successor or successors thereto. In the event that at any time the rating agencies rating the Notes do not include KBRA, references to rating categories of KBRA in the Indenture will be deemed instead to be references to the equivalent categories of such other rating agency as then is rating the Notes as of the most recent date on which such other rating agency and KBRA published ratings for the type of security in respect of which such alternative rating agency is used. If the applicable Series Supplement or Variable Funding Note Purchase Agreement specifies an additional rating agency, then “Rating Agency” as used herein also refers to such additional rating agency.
“Rating Agency Condition” means, with respect to any Outstanding Series of Notes and any event or action to be taken or proposed to be taken requiring satisfaction of the Rating Agency Condition in the Indenture or in any other Related Document, a condition that is satisfied if the Manager has notified the Master Issuer, the Control Party and the Trustee in writing that the Manager has provided the Rating Agency with a written notification setting forth in reasonable detail such event or action and has actively solicited (by written request and by request via email and telephone) a Rating Agency Confirmation from the Rating Agency, and the Rating Agency has either provided the Manager with a Rating Agency Confirmation with respect to such event or action or informed the Manager that it declines to review such event or action; provided that:
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below the lower of (1) the then-current credit ratings on such Outstanding Series of Notes or (2) the initial credit ratings assigned to such Outstanding Series of Notes by such Rating Agency (in each case, without negative implications); and
provided, that in the case of clause (c), a Rating Agency Confirmation of KBRA will be required for each Series of Notes then rated by KBRA at the time of such issuance of Additional Notes (other than any Series of Notes that will be repaid in full from the proceeds of issuance of the Additional Notes or otherwise on the applicable Series Closing Date for such Additional Notes).
“Rating Agency Confirmation” means, with respect to any Outstanding Series of Notes, a confirmation from each Rating Agency that a proposed event or action will not result in (i) a withdrawal of its credit ratings on such Outstanding Series of Notes or (ii) the assignment of credit ratings on such Outstanding Series of Notes below the lower of (A) the then-current credit ratings on such Outstanding Series of Notes or (B) the initial credit ratings assigned to such Outstanding Series of Notes by such Rating Agency (in each case, without negative implications).
“Rating Agency Notification” means, with respect to any prospective action or occurrence, a written notification to each Rating Agency for each Series of Notes Outstanding setting forth in reasonable detail such action or occurrence.
“Reacquired Center” means a Center reacquired by a Non-Securitization Entity for financial and other reasons until such time as such Center is re-franchised to a Franchisee.
“Record Date” means, with respect to any Quarterly Payment Date, (i) the close of business on the last Business Day of the calendar month immediately preceding the calendar month in which such Quarterly Payment Date occurs or (ii) in the case of a Noteholder of a Definitive Note, fifteen
(15) days (without regard to whether such day is a Business Day) prior to the applicable Quarterly Payment Date; provided, however, that with respect to any redemption or optional prepayment, the Record Date shall be the Business Day prior to the date of such redemption or optional prepayment.
“Registrar” has the meaning specified in Section 2.5(a) of the Base Indenture.
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“Related Documents” means the Indenture, the Notes, the Guarantee and Collateral Agreement, each Account Control Agreement, the Management Agreement, the Control Party Agreement, the Advance Funding Agreement, the Back-Up Management Agreement, any Series Hedge Agreement, the Contribution Agreements, any agreement pursuant to which New Contributed Assets are contributed to the Securitization Entities, any Variable Funding Note Purchase Agreement, each other note purchase agreement pursuant to which Notes are purchased, the IP License Agreements, any Enhancement Agreement, the Charter Documents, each Letter of Credit Reimbursement Agreement, the Parent Company Support Agreement and any additional document identified as a “Related Document” in the Series Supplement for any Series of Notes Outstanding and any other material agreements entered into, or certificates delivered, pursuant to the foregoing documents.
“Reportable Event” means any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Single Employer Plan (other than an event for which the 30-day notice period is waived).
“Required Rating” means (i) a short-term certificate of deposit rating from S&P of at least “A-2” and if it is rated by KBRA, from KBRA of at least “K2” and (ii) a long-term unsecured debt rating of not less than “BBB-” by S&P and if it is rated by KBRA, of an unsecured debt rating of not less than “BBB-” by KBRA.
“Requirements of Law” means, with respect to any Person or any of its property, the certificate of incorporation or articles of association and by-laws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person or any of its property, and any law, treaty, rule or regulation, or determination of any arbitrator or Governmental Authority, in each case applicable to, or binding upon, such Person or any of its property or to which such Person or any of its property is subject, whether federal, state, local or foreign (including, without limitation, usury laws, the Federal Truth in Lending Act, state franchise laws and retail installment sales acts).
“Residual Amount” means for any Weekly Allocation Date with respect to any Quarterly Collection Period the amount, if any, by which the amount allocated to the Collection Account on such Weekly Allocation Date exceeds the sum of the amounts to be paid and/or allocated on such Weekly Allocation Date pursuant to priorities (i) through (xxx) of the Priority of Payments.
“Retained Collections” means, with respect to any specified period of time, the amount equal to the sum of (A) Collections (other than Product Revenue Payments) received over such period, plus, without duplication, (B) the Product Cash Profit Amount, minus, without duplication,
(C) the Excluded Amounts over such period. Funds released from the Cash Trap Reserve Account or the Advance Funding Reserve Account shall not constitute Retained Collections for purposes of this definition.
“Retained Collections Contribution” means, with respect to any Quarterly Collection Period, an equity contribution made to the Master Issuer, at any time prior to the Series Legal Final Maturity Date with respect the last Series of Notes Outstanding, to be included in Net Cash Flow in accordance with Section 5.18 of the Base Indenture, which for all purposes of the Related Documents, except as otherwise specified therein, will be treated as Retained Collections received
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during such Quarterly Collection Period; provided that any Retained Collections Contribution made will be excluded from Net Cash Flow for purposes of calculations undertaken in the following circumstances: (i) the New Series Pro Forma DSCR or (ii) compliance with the applicable Series Non-Amortization Test.
“Retained Corporate-Owned Center Business” means the business of owning and operating the Retained Corporate-Owned Centers and the provision of ancillary goods and services in connection therewith.
“Retained Corporate-Owned Centers” means the Corporate-Owned Centers owned and operated by any Non-Securitization Entity. The Retained Corporate-Owned Centers may include certain Reacquired Centers from time to time.
“Royalty Payments” means the weekly royalty payments that are payable by any Franchisee to the Franchisor pursuant to each Franchise Agreement.
“Rule 144A” means Rule 144A under the 1933 Act.
“S&P” means S&P Global Ratings (and any successor or successors thereto).
“Scheduled Principal Payments” means, with respect to each Series or any Class of any Series of Notes, each payment scheduled to be made pursuant to the applicable Series Supplement that reduces the amount of principal Outstanding with respect to such Series or Class on a periodic basis that is identified as “Scheduled Principal Payments” in the applicable Series Supplement.
“Scheduled Principal Payments Deficiency Event” means, with respect to any Quarterly Collection Period, as of the last Weekly Allocation Date with respect to such Quarterly Collection Period, the occurrence of the following event: the amount of funds on deposit in the Senior Notes Principal Payment Account after the last Weekly Allocation Date with respect to such Quarterly Collection Period is less than the aggregate amount of Senior Notes Quarterly Scheduled Principal Amounts due and payable on all such Senior Notes for the next succeeding Quarterly Payment Date.
“Scheduled Principal Payments Deficiency Notice” has the meaning specified in Section 4.1(d) of the Base Indenture.
“SEC” means the United States Securities and Exchange Commission.
“Secured Parties” means the Trustee, for the benefit of (i) itself, (ii) the noteholders, (iii) the Advance Funding Administrative Agent and the Advance Funding Providers, (iv) the Control Party, (v) the Manager, (vi) the Back-Up Manager, (vii) each Hedge Counterparty, if any, and
(viii) the Enhancement Provider, if any, together with their respective successors and assigns. “Securities Intermediary” has the meaning set forth in Section 5.9(a) of the Base Indenture.
“Securitization Entities” means, collectively, the Master Issuer and the Guarantors, and each Subsidiary thereof.
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“Securitization IP” means, collectively, the Closing Date Securitization IP and the After- Acquired Securitization IP, except that “Securitization IP” will not include, solely for purposes of the licenses granted under the IP License Agreements, any rights to use licensed third-party Intellectual Property to the extent that such rights are not sublicensable without the consent of or any payment to such third party, or any other action by the licensee thereof, unless such consent has been obtained or payment has been made.
“Securitization Operating Expense Account” has the meaning set forth in Section 5.8(a)(xi) of the Base Indenture.
“Securitization Operating Expenses” means all expenses incurred by the Securitization Entities and payable to third parties in connection with the maintenance and operation of the Securitization Entities and the transactions contemplated by the Related Documents to which they are a party (other than those paid for from the Concentration Accounts or Distributor Operating Accounts as described below and any fees, expenses or indemnities owed to any entity incurred in the performance of its role as Control Party), including (i) accrued and unpaid Taxes (other than federal, state, local and foreign Taxes based on income, profits or capital, including franchise, excise, withholding or similar Taxes), filing fees and registration fees payable by and attributable to the Securitization Entities to any federal, state, local or foreign Governmental Authority; (ii) fees and expenses payable to (A) the Trustee under the Indenture or the other Related Documents to which it is a party, (B) the Back-Up Manager as Back-Up Manager Fees, (C) each Rating Agency, (D) independent certified public accountants (including, for the avoidance of doubt, any incremental auditor costs) or external legal counsel and (E) any stock exchange on which any Notes may be listed; (iii) the indemnification obligations of the Securitization Entities under the Related Documents to which they are a party (including any interest thereon at the Advance Interest Rate, if applicable); and (iv) independent director and independent manager fees and expenses.
“Securitized Assets” means all assets owned by the Securitization Entities, including but not limited to the Collateral.
“Securitized Supply Agreements” means the Contributed Securitized Supply Agreements and the New Securitized Supply Agreements.
“Senior ABS Leverage Ratio” means, as of any date of determination, the ratio of (a)(i) the aggregate Outstanding Principal Amount of each Series of Senior Notes Outstanding (assuming the amounts available under each Class A-1 Note at such time (after giving effect to any commitment reductions on such date) are fully drawn) as of the end of the most recently ended Quarterly Collection Period less (ii) the sum of (x) the cash and Eligible Investments of the Securitization Entities credited to the Senior Notes Interest Reserve Account, the Cash Trap Reserve Account, the Advance Funding Reserve Account and the Franchisor Capital Accounts as of the end of the most recently ended Quarterly Collection Period, and (y) the available amount of the Interest Reserve Letter of Credit with respect to the Senior Notes as of the end of the most recently ended Quarterly Collection Period to (b) the sum of the Net Cash Flow for the preceding four (4) Quarterly Collection Periods most recently ended as of such date and for which a Quarterly Noteholders’ Report has been prepared. The Senior ABS Leverage Ratio shall be calculated in accordance with Section 14.18(b) of the Base Indenture.
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“Senior Noteholder” means any Holder of Senior Notes of any Series.
“Senior Notes” or “Class A Notes” means the issuance of Notes under the Indenture by the Master Issuer that by its terms (through its alphabetical designation as “Class A” pursuant to the Series Supplement applicable to such Indebtedness) is senior in the right to receive interest and principal on such Notes to the right to receive interest and principal on any Subordinated Notes.
“Senior Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Senior Notes Outstanding, the amount identified as “Senior Notes Accrued Quarterly Interest Amount” in the applicable Series Supplement.
“Senior Notes Accrued Quarterly Post-ARD Contingent Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Senior Notes Outstanding, the amount identified as “Senior Notes Accrued Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
“Senior Notes Accrued Quarterly Scheduled Principal Amount” means with respect to each Weekly Allocation Date, and with respect to all Senior Notes Outstanding, the aggregate amounts identified as the “Senior Notes Accrued Quarterly Scheduled Principal Amount” in each applicable Series Supplement.
“Senior Notes Collateral Protection Percentage” means, as of any date of determination, the ratio, expressed as a percentage, of (x) the sum of (A) the Outstanding Principal Amount of all Senior Notes (other than any Class A-1 Notes) and (B) the Class A-1 Notes Maximum Principal Amount, in each case, as of such date to (y) the sum of (I) the Outstanding Principal Amount of all Senior Notes (other than any Class A-1 Notes), (B) the Class A-1 Notes Maximum Principal Amount and (C) the Outstanding Principal Amount of the Senior Subordinated Notes, in each case, as of such date.
“Senior Notes Interest Payment Account” has the meaning set forth in Section 5.8(a)(i) of the Base Indenture.
“Senior Notes Interest Reserve Account” means account no. 00000000 entitled “Citibank,
N.A. f/b/o EWC Master Issuer LLC, Senior Notes Interest Reserve Account”, which account is maintained by the Trustee pursuant to Section 5.3 of the Base Indenture or any successor securities account maintained pursuant to Section 5.3 of the Base Indenture.
“Senior Notes Interest Reserve Account Deficiency Amount” means, as of any date of determination the excess, if any, of the Senior Notes Interest Reserve Amount over the sum of
(a) the amount on deposit in the Senior Notes Interest Reserve Account and (b) the amount available under any Interest Reserve Letter of Credit relating to the Senior Notes.
“Senior Notes Interest Reserve Amount” means, with respect to any Quarterly Payment Date (and any Weekly Allocation Date related thereto), an amount equal to the Senior Notes Quarterly Interest Amount due on the next Quarterly Payment Date (with the interest and Class X- 0 Quarterly Commitment Fee Amount payable with respect to the Class A-1 Notes on such Quarterly Payment Date being based on the good faith utilization estimate of the Manager as set
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forth in the applicable Weekly Manager’s Certificate) and assuming that the rate on each Class X- 0 Note is equivalent to the rate on a Class A-2 Note with the shortest time until its Series Anticipated Repayment Date; provided that, with respect to the first Interest Accrual Period following the Closing Date, the Senior Notes Interest Reserve Amount will be an amount equal to the Initial Senior Notes Interest Reserve Amount.
“Senior Notes Post-ARD Contingent Interest Account” has the meaning set forth in Section 5.7 of the Base Indenture
“Senior Notes Principal Payment Account” has the meaning set forth in Section 5.8 of the Base Indenture.
“Senior Notes Quarterly Interest Amount” means for each Quarterly Payment Date, with respect to each Class of Senior Notes Outstanding, the aggregate amounts identified as the “Senior Notes Quarterly Interest Amount” in the applicable Series Supplement.
“Senior Notes Quarterly Interest Shortfall Amount” has the meaning set forth in Section 5.14(a)(iii) of the Base Indenture.
“Senior Notes Quarterly Post-ARD Contingent Interest Amount” means for each Quarterly Payment Date, with respect to each Class of Senior Notes Outstanding, the amounts identified as “Senior Notes Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
“Senior Notes Quarterly Scheduled Principal Amounts” means, with respect to each Class of Senior Notes Outstanding, each Scheduled Principal Payment with respect to such Class of Senior Notes.
“Senior Notes Quarterly Scheduled Principal Deficiency Amount” means with respect to each Weekly Allocation Date, and with respect to all Senior Notes Outstanding, the aggregate amounts identified as the “Senior Notes Quarterly Scheduled Principal Deficiency Amount” in each applicable Series Supplement.
“Senior Subordinated Noteholder” means any Holder of Senior Subordinated Notes of any
Series.
“Senior Subordinated Notes” means any issuance of Notes under the Indenture by the
Master Issuer that are part of a Class with an alphanumerical designation that contains any letter from “B” through “L” of the alphabet, together with all Subclasses or Tranches thereof.
“Senior Subordinated Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Senior Subordinated Notes Outstanding, the amount identified as the “Senior Subordinated Notes Accrued Quarterly Interest Amount” in the applicable Series Supplement.
“Senior Subordinated Notes Accrued Quarterly Post-ARD Contingent Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Senior Subordinated Notes Outstanding, the amount identified as “Senior
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Subordinated Notes Accrued Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
“Senior Subordinated Notes Accrued Quarterly Scheduled Principal Amount” means, with respect to each Weekly Allocation Date, and with respect to all Senior Subordinated Notes Outstanding, the aggregate amounts identified as the “Senior Subordinated Notes Accrued Quarterly Scheduled Principal Amount” in each applicable Series Supplement.
“Senior Subordinated Notes Collateral Protection Percentage” means, as of any date of determination, the ratio, expressed as a percentage, of (x) the Outstanding Principal Amount of the Senior Subordinated Notes as of such date to (y) the sum of (I) the Outstanding Principal Amount of all Senior Notes (other than any Class A-1 Notes), (B) the Class A-1 Notes Maximum Principal Amount and (C) the Outstanding Principal Amount of the Senior Subordinated Notes, in each case, as of such date.
“Senior Subordinated Notes Interest Payment Account” has the meaning set forth in Section 5.8(a)(ii) of the Base Indenture.
“Senior Subordinated Notes Interest Reserve Account” means an account entitled “Citibank, N.A. f/b/o EWC Master Issuer LLC, Senior Subordinated Notes Interest Reserve Account” maintained by the Trustee pursuant to Section 5.4(a) of the Base Indenture or any successor securities account maintained pursuant to Section 5.4(a) of the Base Indenture.
“Senior Subordinated Notes Interest Reserve Account Deficiency Amount” means, as of any date of determination, the excess, if any, of the Senior Subordinated Notes Interest Reserve Amount over the sum of (a) the amount on deposit in the Senior Subordinated Notes Interest Reserve Account and (b) the amount available under any Interest Reserve Letter of Credit relating to the Senior Subordinated Notes.
“Senior Subordinated Notes Interest Reserve Amount” means, with respect to any Quarterly Payment Date (and any Weekly Allocation Date related thereto), an amount equal to the Senior Subordinated Notes Quarterly Interest Amount due on the next Quarterly Payment Date.
“Senior Subordinated Notes Post-ARD Contingent Interest Account” has the meaning set forth in Section 5.8 of the Base Indenture.
“Senior Subordinated Notes Principal Payment Account” has the meaning set forth in Section 5.8 of the Base Indenture.
“Senior Subordinated Notes Quarterly Interest Amount” means, for each Quarterly Payment Date, with respect to each Class of Senior Subordinated Notes Outstanding, the aggregate amounts identified as the “Senior Subordinated Notes Quarterly Interest Amount” in the applicable Series Supplement.
“Senior Subordinated Notes Quarterly Post-ARD Contingent Interest Amount” means, for each Quarterly Payment Date, with respect to each Class of Senior Subordinated Notes Outstanding, the amounts identified as “Senior Subordinated Notes Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
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“Senior Subordinated Notes Quarterly Scheduled Principal Amounts” means, with respect to each Class of Senior Subordinated Notes Outstanding, each Scheduled Principal Payment with respect to such Class of Senior Subordinated Notes.
“Senior Subordinated Notes Quarterly Scheduled Principal Deficiency Amount” means with respect to each Weekly Allocation Date, and with respect to all Senior Subordinated Notes Outstanding, the aggregate amounts identified as the “Senior Subordinated Notes Quarterly Scheduled Principal Deficiency Amount” in each applicable Series Supplement.
“Series Account” means any account or accounts established pursuant to a Series Supplement for the benefit of a Series of Notes (or any Class thereof).
“Series Anticipated Repayment Date” means, with respect to any Series of Notes, Class, Subclass or Tranche thereunder, the “Anticipated Repayment Date” as set forth in the related Series Supplement, which will be the Series Anticipated Repayment Date for such Series of Notes, or Class, Subclass or Tranche thereunder, as adjusted pursuant to the terms of the applicable Series Supplement.
“Series Closing Date” means, with respect to any Series of Notes or Additional Notes, the date of issuance of such Series of Notes or Additional Notes, as specified in the applicable Series Supplement or Supplement to the related Series Supplement for Additional Notes issued under an existing Series, Class, Subclass or Tranche of Notes.
“Series Defeasance Date” has the meaning set forth in Section 12.1(c) of the Base Indenture.
“Series Distribution Account” means, with respect to any Series of Notes or any Class of any Series of Notes, an account established to receive distributions to be paid to the Noteholders of such Class or such Series of Notes pursuant to the applicable Series Supplement.
“Series Hedge Agreement” means, with respect to any Series of Notes, the relevant Swap Contract, if any, described in the applicable Series Supplement.
“Series Hedge Payment Amount” means all amounts payable by the Master Issuer under a Series Hedge Agreement including any termination payment payable by the Master Issuer.
“Series Hedge Receipts” means all amounts received by the Securitization Entities under a Series Hedge Agreement.
“Series Legal Final Maturity Date” means, with respect to any Series, the “Legal Final Maturity Date” set forth in the related Series Supplement.
“Series Non-Amortization Test” means, with respect to any Series or Class of Notes, the test specified in the applicable Series Supplement or, if not specified therein, means a test that will be satisfied on any Quarterly Payment Date only if both (a) the Holdco Leverage Ratio is less than or equal to 5.00x as calculated on the Quarterly Calculation Date immediately preceding such Quarterly Payment Date and (b) no Rapid Amortization Event has occurred and is continuing.
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“Series Obligations” means, with respect to a Series, Class, Subclass or Tranche of Notes,
(a) all principal, interest, premiums, make-whole payments and Series Hedge Payment Amounts, at any time and from time to time, owing by the Master Issuer on such Series, Class, Subclass or Tranche of Notes or owing by the Guarantors pursuant to the Guarantee and Collateral Agreement on such Series, Class, Subclass or Tranche of Notes and (b) the payment and performance of all other obligations, covenants and liabilities of the Master Issuer or the Guarantors arising under the Indenture, the Notes or any other Indenture Document, in each case, solely with respect to such Series, Class, Subclass or Tranche of Notes.
“Series of Notes” or “Series” means each series of Notes issued and authenticated pursuant to the Base Indenture and the applicable Series Supplement.
“Series Supplement” means a supplement to the Base Indenture in conjunction with the issuance of a Series of Notes complying (to the extent applicable) with the terms of Section 2.3 of the Base Indenture.
“Services” has the meaning set forth in the Management Agreement.
“Single Employer Plan” means any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan.
“Software” has the meaning set forth in the definition of “Intellectual Property.” “Specified Bankruptcy Opinion Provisions” means the provisions contained in the legal
opinion(s) delivered in connection with the issuance of each Series of Notes relating to the non- substantive consolidation of the Securitization Entities with Holdco.
“Specified Indenture Trust Accounts” shall mean the Senior Notes Interest Payment Account, the Class A-1 Notes Commitment Fees Account, the Senior Subordinated Notes Interest Payment Account, the Subordinated Notes Interest Payment Account, the Senior Notes Principal Payment Account, the Senior Subordinated Notes Principal Payment Account, the Subordinated Notes Principal Payment Account, the Senior Notes Post-ARD Contingent Interest Account, the Senior Subordinated Notes Post-ARD Contingent Interest Account, the Subordinated Notes Post- ARD Contingent Interest Account, the Hedge Payment Account, the Cash Trap Reserve Account and the Advance Funding Reserve Account.
“Standby Investment” means BlackRock Treasury Trust Fund – Dollar Shares (TTDXX) Fund 063 or such other Eligible Investment as may be directed in writing from time to time by the Master Issuer to the Trustee.
“Subclass” means, with respect to any Class of any Series of Notes, any one of the subclasses of Notes of such Class as specified in the applicable Series Supplement.
“Subordinated Notes” means any issuance of Notes under the Indenture by the Master Issuer that are part of a Class with an alphanumerical designation that contains any letter from “M” through “Z” of the alphabet, together with all Subclasses or Tranches thereof.
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“Subordinated Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Subordinated Notes Outstanding, the amount identified as “Subordinated Notes Accrued Quarterly Interest Amount” in the applicable Series Supplement.
“Subordinated Notes Accrued Quarterly Post-ARD Contingent Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Collection Period, and with respect to any Subordinated Notes Outstanding, the amount identified as “Subordinated Notes Accrued Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
“Subordinated Notes Accrued Quarterly Scheduled Principal Amount” means, with respect to each Weekly Allocation Date, and with respect to all Subordinated Notes Outstanding, the aggregate amounts identified as the “Subordinated Notes Accrued Quarterly Scheduled Principal Amount” in each applicable Series Supplement.
“Subordinated Notes Interest Payment Account” has the meaning set forth in Section 5.8(a)(iii) of the Base Indenture.
“Subordinated Notes Post-ARD Contingent Interest Account” has the meaning set forth in Section 5.8 of the Base Indenture.
“Subordinated Notes Principal Payment Account” has the meaning set forth in Section 5.8 of the Base Indenture.
“Subordinated Notes Provisions” means, with respect to the issuance of any Series of Notes that includes Subordinated Notes, the terms of such Subordinated Notes will include the following provisions: (a) if there is an Extension Period in effect with respect to the Senior Notes issued on the Closing Date, the principal of any Subordinated Notes will not be permitted to be repaid out of the Priority of Payments unless such Senior Notes are no longer Outstanding, (b) if the Senior Notes issued on the Closing Date are refinanced on or prior to the Series Anticipated Repayment Date of such Senior Notes and any such Subordinated Notes having a Series Anticipated Repayment Date on or before the Series Anticipated Repayment Date of such Senior Notes are not refinanced on or prior to the Series Anticipated Repayment Date of such Senior Notes, such Subordinated Notes will begin to amortize on the date that the Senior Notes are refinanced pursuant to a Scheduled Principal Payment schedule to be set forth in the applicable Series Supplement and
(c) if the Senior Notes issued on the Closing Date are not refinanced on or prior to the Quarterly Payment Date following the seventh anniversary of the Closing Date, such Subordinated Notes will not be permitted to be refinanced.
“Subordinated Notes Quarterly Interest Amount” means for each Quarterly Payment Date, with respect to each Class of Subordinated Notes Outstanding, the aggregate amounts identified as the “Subordinated Notes Quarterly Interest Amount” in the applicable Series Supplement.
“Subordinated Notes Quarterly Interest Shortfall” has the meaning set forth in Section 5.14(f)(iii) of the Base Indenture.
“Subordinated Notes Quarterly Post-ARD Contingent Interest Amount” means, for each Quarterly Payment Date, with respect to each Class of Subordinated Notes Outstanding, the
Annex A-53
amounts identified as “Subordinated Notes Quarterly Post-ARD Contingent Interest Amount” in the applicable Series Supplement.
“Subordinated Notes Quarterly Scheduled Principal Amounts” means, with respect to each Class of Subordinated Notes Outstanding, each Scheduled Principal Payment with respect to such Class of Subordinated Notes.
“Subordinated Notes Quarterly Scheduled Principal Deficiency Amount” means with respect to each Weekly Allocation Date, and with respect to all Subordinated Notes Outstanding, the aggregate amounts identified as the “Subordinated Notes Quarterly Scheduled Principal Deficiency Amount” in each applicable Series Supplement.
“Subsidiary” means, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held by the parent or (b) that is, at the time any determination is being made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary Guarantors” means, collectively, the Franchisor, the Distributor and the Additional Securitization Entities.
“Successor Manager” means any successor to the Manager selected by the Control Party (at the direction of the Controlling Class Representative) upon the termination, removal, resignation or replacement of the Manager pursuant to the terms of the Management Agreement.
“Successor Manager Transition Expenses” means all costs and expenses incurred by a Successor Manager in connection with the termination, removal, resignation and replacement of the Manager under the Management Agreement.
“Supplement” means a supplement to the Base Indenture complying (to the extent applicable) with the terms of Article XIII of the Base Indenture.
“Supplemental Management Fee” means for each Weekly Allocation Date with respect to any Quarterly Collection Period the amount (if any), approved in writing by the Control Party acting at the direction of the Controlling Class Representative, by which, with respect to such Quarterly Collection Period, (A) the sum of (i) the expenses incurred or other amounts charged by the Manager since the beginning of such Quarterly Collection Period in connection with the performance of the Manager’s obligations under the Management Agreement, and (ii) any current or projected Tax Payment Deficiency, if applicable exceeds (B) the Management Fees received and to be received by the Manager on such Weekly Allocation Date and each preceding Weekly Allocation Date with respect to such Quarterly Collection Period.
“Supply Agreements” means all supply agreements with third-party manufacturers and/or vendors to purchase Wax Supplies and Branded Products.
Annex A-54
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Tax” means (i) any U.S. federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, environmental, customs duties, capital stock, profits, documentary, property, franchise, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, or other tax of any kind whatsoever, including any interest, penalty, fine, assessment or addition thereto and (ii) any transferee liability in respect of any items described in clause (i) above.
“Tax-Restricted Affiliate” means any Person that, directly or indirectly, owns or has any plan or intention to own (or, to its knowledge, is related, within the meaning of Treasury Regulations Section 1.752-4(b), to a Person that, directly or indirectly, owns or has any plan or intention to own) Equity Interests of the Master Issuer or the Manager unless such Person owns (or will own) such Equity Interests indirectly by way of (i) a direct or indirect Equity Interest in Holdco or (ii) the direct or indirect ownership of less than 80% of the Equity Interests of an entity that is a corporation for U.S. federal income tax purposes and that in turn owns a direct or indirect Equity Interest of the Manager.
“Tax Lien Reserve Amount” means any funds contributed by Holdco or a Subsidiary thereof to satisfy Liens filed by the IRS pursuant to Section 6323 of the Code against any Securitization Entity.
“Tax Opinion” means an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters to be delivered in connection with the issuance of each new Series of Notes to the effect that, for U.S. federal income tax purposes, (a) the issuance of such new Series of Notes will not affect adversely the U.S. federal income tax characterization of any Series of Notes Outstanding or Class thereof that was (based upon an Opinion of Counsel) treated as debt at the time of their issuance, (b) each Securitization Entity organized in the United States in existence as of the date of the delivery of such opinion (other than any Additional Securitization Entity that is a corporation) (i) will as of the date of issuance be treated as a disregarded entity for U.S. federal income tax purposes and (ii) will not as of the date of issuance be classified as a corporation or as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (c) such new Series of Notes will as of the date of issuance be treated as debt for U.S. federal income tax purposes.
Annex A-55
“Tax Payment Deficiency” means any Tax liability of Holdco (or, if Holdco is not the taxable parent entity of any Securitization Entity, such other taxable parent entity) (including Taxes imposed under U.S. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law)) attributable to the operations of the Securitization Entities that the Manager determines cannot be satisfied by Holdco (or such other taxable parent entity) from its available funds.
“Threshold DSCR” means, with respect to any Indemnification Amount or any Insurance/Condemnation Proceeds, the DSCR as of the Quarterly Payment Date occurring in the month of December immediately preceding the date on which (i) in the case of any Insurance/Condemnation Proceeds, a Securitization Entity receives the Net Cash Proceeds with respect to the applicable Insurance/Condemnation Proceeds, or (ii) in the case of an Indemnification Amount, the Manager would be required to pay such Indemnification Amount to the applicable Securitization Entity but for the potential application of the materiality thresholds set forth in the definition of “Indemnification Amounts Threshold Amount;” provided that for the period commencing on the Closing Date and ending on the first Quarterly Payment Date occurring in the month of December thereafter, the Threshold DSCR shall be deemed to be greater than 2.75x.
“Trade Secrets” has the meaning set forth in the definition of “Intellectual Property.”
“Trademarks” means all trademarks, service marks, trade names, trade dress, designs, logos, slogans and other indicia of source or origin, whether registered or unregistered, registrations and pending applications to register the foregoing, internet domain names, and all goodwill of any business connected with the use of or symbolized thereby.
“Tranche” means, with respect to any Class of Notes, any one of the tranches of Notes of such Class as specified in the applicable Series Supplement.
“Transition Control Party” has the meaning set forth in Section 11.4(g) of the Base Indenture.
“Trust Officer” means any officer within the corporate trust department of the Trustee, including any Vice President, Assistant Vice President or Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any officer customarily performing functions similar to those performed by the person who at the time will be such officers, in each case having direct responsibility for the administration of this Indenture, and also any officer to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject.
“Trustee” means the party named as such in the Indenture until a successor replaces it in accordance with the applicable provisions of the Indenture and thereafter means the successor serving thereunder. On the Closing Date, the Trustee shall be Citibank, N.A., a national banking association.
“Trustee Accounts” has the meaning set forth in Section 5.9(a) of the Base Indenture. “UCC” means the Uniform Commercial Code as in effect from time to time in the specified
jurisdiction or any applicable jurisdiction, as the case may be.
Annex A-56
“Uncertificated Note” means any Note issued in uncertificated, fully-registered form evidenced by entry in the Registrar.
“United States” or “U.S.” means the United States of America, its fifty states and the District of Columbia.
“Unrestricted Cash” means as of any date, unrestricted cash and Eligible Investments owned by the Non-Securitization Entities that are not, and are not presently required under the terms of any agreement or other arrangement binding any Non-Securitization Entity on such date to be, (a) pledged to or held in one or more accounts under the control of one or more creditors of any Non-Securitization Entity or (b) otherwise segregated from the general assets of the Non- Securitization Entities, in one or more special accounts or otherwise, for the purpose of securing or providing a source of payment for Indebtedness or other obligations that are or from time to time may be owed to one or more creditors of the Non-Securitization Entities. It is agreed that cash and Eligible Investments held in ordinary deposit or security accounts and not subject to any existing or contingent restrictions on transfer by any Non-Securitization Entity will not be excluded from Unrestricted Cash by reason of setoff rights or other Liens created by law or by applicable account agreements in favor of the depository institutions or security intermediaries.
“U.S. Dollars” or “$” refers to lawful money of the United States of America.
“Variable Funding Note Purchase Agreement” means any note purchase agreement entered into by the Master Issuer in connection with the issuance of Class A-1 Notes that is identified as a “Variable Funding Note Purchase Agreement” in the applicable Series Supplement.
“Warm Back-Up Management Duties” has the meaning set forth in the Back-Up Management Agreement.
“Warm Back-Up Management Trigger Event” means the occurrence and continuation of
(i) any event that causes a Cash Trapping Period to begin and that continues for at least two (2) consecutive Quarterly Calculation Dates or (ii) a Rapid Amortization Event, in each case, that has not been waived or approved by the Control Party (at the direction of the Controlling Class Representative), provided that any Rapid Amortization Event pursuant to clause (ii) of the definition thereof shall not be a Warm Back-Up Management Trigger Event unless such Rapid Amortization Event has not been cured within six (6) months from the date of such Rapid Amortization Event.
“Wax Supplies” means wax and wholesale products consumed in the application of wax services.
“Weekly Allocation Date” means the fourth Business Day immediately following the last day of each Weekly Collection Period, commencing on April 21, 2022.
“Weekly Collection Period” means each weekly period commencing at 12:00 a.m. (Eastern time) on each Sunday and ending at 11:59:59 p.m. (Eastern time) on the following Saturday, except that the first Weekly Collection Period will be the period commencing at 12:00 a.m. (Eastern time) on the Cut-Off Date and ending at 11:59:59 p.m. (Eastern time) on the following Saturday (April 16, 2022).
Annex A-57
“Weekly Manager’s Certificate” has the meaning specified in Section 4.1(a) of the Base Indenture.
“Welfare Plan” means any “employee welfare benefit plan” as such term is defined in Section 3(1) of ERISA.
“Workout Fees” has the meaning set forth in the Control Party Agreement.
Exhibit A
WEEKLY MANAGER’S CERTIFICATE
[ON FILE WITH MASTER ISSUER]
Exhibit B-1 FORM OF NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS
This NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS (the “Notice”)
is made and entered into as of [ ], by and between [SECURITIZATION ENTITY] a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States trademarks and service marks (including the associated registrations and applications for registration) set forth in Schedule 1 attached hereto (collectively, the “Trademarks”) and goodwill connected with the use of or symbolized by such Trademarks; and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6, 2022, by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Trademarks and the goodwill connected with the use of or symbolized by the Trademarks, and the right to bring an action at law or in equity for any infringement, dilution, misappropriation or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Trademark Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Notice for purposes of recording the same with the United States Patent and Trademark Office (“USPTO”) to confirm, evidence and perfect the security interest in the Trademark Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Trademark Collateral, to the extent now owned or at any time hereafter acquired by Grantor; provided that the grant of security interest hereunder shall not include any application for a Trademark that would be invalidated, canceled, voided or abandoned due to the grant and/or enforcement of such security interest, including intent-to-use applications filed with the USPTO pursuant to 15 U.S.C. Section 1051(b) prior to the filing and acceptance of a statement of use or amendment to allege use pursuant to 15 U.S.C. Section 1051(c) or (d), provided that at such time
as the grant and/or enforcement of the security interest will not cause such application to be deemed invalidated, cancelled, or abandoned, such Trademark application will not be excluded from the Notice.
Capitalized terms used in this Notice (including the preamble and the recitals hereto), and not defined in this Notice, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022 by and among EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (the “Indenture”).
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IN WITNESS WHEREOF, the undersigned has caused this NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:_____________
Name:___________
Title:____________
Notice of Grant of Security Interest in Trademarks
Schedule 1 Trademarks
Xxxx |
Class |
App. No. |
App. Date |
Reg. No. |
Reg. Date |
Owner |
Status |
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Exhibit B-2 FORM OF NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS
This NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS (the “Notice”) is
made and entered into as of [ ], by and between [SECURITIZATION ENTITY], a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States patents and patent applications (including the associated registrations) set forth in Schedule 1 attached hereto (collectively, the “Patents”); and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6, 2022, by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, and in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Patents, and the right to bring an action at law or in equity for any infringement, dilution, misappropriation, or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Patent Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Notice for purposes of recording the same with the United States Patent and Trademark Office (“USPTO”) to confirm, evidence and perfect the security interest in the Patent Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Patent Collateral, to the extent now owned or at any time hereafter acquired by Grantor; provided that the grant of a security interest hereunder shall not include any application for a Patent that would be invalidated, canceled, voided or abandoned due to the grant and/or enforcement of such security interest, including intent-to-use applications filed with the USPTO pursuant to 15 U.S.C. Section 1051(b) prior to the filing and acceptance of a statement of use or amendment to alleged use pursuant to 15 U.S.C. Section 1051(c) or (d), provided that at such time as the grant or enforcement of the security interest will not cause such application to be deemed invalidated, cancelled, or abandoned, such Patent application will not be excluded from the Notice.
Capitalized terms used in this Notice (including the preamble and the recitals hereto), and not defined in this Notice, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (the “Indenture”).
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IN WITNESS WHEREOF, the undersigned has caused this NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:_________
Name:_______
Title:________
Notice of Grant of Security Interest in Patents
Schedule 1 Patents
Title |
App. No. |
Filing Date |
Patent No. |
Issue Date |
Owner |
Status |
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Exhibit B-3
FORM OF GRANT OF SECURITY INTEREST IN COPYRIGHTS
This GRANT OF SECURITY INTEREST IN COPYRIGHTS (the “Grant”) is made and entered into as of [ ], by and between [SECURITIZATION ENTITY], a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States copyrights (including the associated registrations) set forth in Schedule 1 attached hereto (collectively, the “Copyrights”); and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6, 2022, made by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Copyrights and the right to bring an action at law or in equity for any infringement, dilution, misappropriation or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Copyright Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Grant for purposes of recording the same with the United States Copyright Office (the “Copyright Office”) to confirm, evidence and perfect the security interest in the Copyright Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Copyright Collateral, to the extent now owned or at any time hereafter acquired by Grantor.
Capitalized terms used in this Notice (including the preamble and the recitals hereto), and not defined in this Grant, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (the “Indenture”).
Collateral Agreement, which govern the Trustee’s interest in the Copyright Collateral and which shall control in the event of any conflict. Grantor hereby acknowledges the sufficiency and completeness of this Grant to create a security interest in the Copyright Collateral in favor of the Trustee for the benefit of the Secured Parties, and Grantor hereby requests the United States Copyright Office to file and record this Grant together with the annexed Schedule 1.
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IN WITNESS WHEREOF, the undersigned has caused this GRANT OF SECURITY INTEREST IN COPYRIGHTS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:______________
Name:___________
Title:____________
Schedule 1 Copyrights
Title |
Reg. No. |
Reg. Date |
Owner |
Status |
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Exhibit C-1
FORM OF SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS
This SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN
TRADEMARKS (the “Notice”) is made and entered into as of [ ], by and between [SECURITIZATION ENTITY] a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States trademarks and service marks (including the associated registrations and applications for registration) set forth in Schedule 1 attached hereto (collectively, the “Trademarks”) and goodwill connected with the use of or symbolized by such Trademarks; and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6. 2022, made by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Trademarks and the goodwill connected with the use of or symbolized by the Trademarks, and the right to bring an action at law or in equity for any infringement, dilution, misappropriation or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Trademark Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Notice for purposes of recording the same with the United State Patent and Trademark Office (“USPTO”) to confirm, evidence and perfect the security interest in the Trademark Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Trademark Collateral, to the extent now owned or at any time hereafter acquired by Grantor; provided that the grant of security interest hereunder shall not include any application for a Trademark that would be invalidated, canceled, voided or abandoned due to the grant and/or enforcement of such security interest, including intent-to-use applications filed with the USPTO pursuant to 15 U.S.C. Section 1051(b) prior to the filing and acceptance of a statement of use or
amendment to allege use pursuant to 15 U.S.C. Section 1051(c) or (d), provided that at such time as the grant and/or enforcement of the security interest will not cause such application to be deemed invalidated, cancelled or abandoned, such Trademark application will not be excluded from the Notice.
Capitalized terms used in this Notice (including the preamble and the recitals hereto), and not defined in this Notice, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (the “Indenture”).
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IN WITNESS WHEREOF, the undersigned has caused this SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:_________
Name:_______
Title:________
Supplemental Notice of Grant of Security Interest in Trademarks
Schedule 1 Trademarks
Xxxx |
Class |
App. No. |
App. Date |
Reg. No. |
Reg. Date |
Owner |
Status |
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Exhibit C-2
FORM OF SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS
This SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS
(the “Notice”) is made and entered into as of [ ], by and between [SECURITIZATION ENTITY], a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States patents and patent applications (including the associated registrations and applications for registration) set forth in Schedule 1 attached hereto (collectively, the “Patents”) and goodwill connected with the use of or symbolized by such Patents; and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6, 2022, by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, and in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Patents, and the right to bring an action at law or in equity for any infringement, misappropriation or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Patent Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Notice for purposes of recording the same with the United States Patent and Trademark Office (“USPTO”) to confirm, evidence and perfect the security interest in the Patent Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Patent Collateral, to the extent now owned or at any time hereafter acquired by Grantor; provided that the grant of security interest hereunder shall not include any application for a Patent that would be invalidated, canceled, voided or abandoned due to the grant and/or enforcement of such security interest, including intent-to-use applications filed with the USPTO pursuant to 15 U.S.C. Section 1051(b) prior to the filing and acceptance of a statement of use or amendment to allege use pursuant to 15 U.S.C. Section 1051(c) or (d), provided that at such time as the grant and/or enforcement of the security interest will not cause such application to be deemed invalidated, cancelled or abandoned, such Patent application will not be excluded from the Notice.
Capitalized terms used in this Notice (including the preamble and the recitals hereto), and not defined in this Notice, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (the “Indenture”).
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this SUPPLEMENTAL NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:____________
Name: __________
Title:____________
Supplemental Notice of Grant of Security Interest in Patents
Schedule 1 Patents
Title |
App. No. |
Filing Date |
Patent No. |
Issue Date |
Owner |
Status |
|
|
|
|
|
|
|
Exhibit C-3 FORM OF SUPPLEMENTAL GRANT OF SECURITY INTEREST IN COPYRIGHTS
This SUPPLEMENTAL GRANT OF SECURITY INTEREST IN COPYRIGHTS (the
“Grant”) is made and entered into as of [ ], by and between [SECURITIZATION ENTITY], a Delaware limited liability company located at 0000 Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxx, Xxxxx 00000 (“Grantor”), in favor of CITIBANK, N.A., a national banking association (“Citibank”), as trustee, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (“Trustee”).
WHEREAS, Grantor is the owner of the United States copyrights (including the associated registrations) set forth in Schedule 1 attached hereto (collectively, the “Copyrights”); and
WHEREAS, pursuant to the Guarantee and Collateral Agreement, dated as of April 6, 2022, made by EWC Franchisor LLC, a Delaware limited liability company, EWC Distributor LLC, a Delaware limited liability company, and EWC Holding Guarantor LLC, a Delaware limited liability company, each as a Guarantor, and in favor of the Trustee (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”), to secure the Obligations, Grantor has granted to the Trustee for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under certain intellectual property of Grantor, including the Copyrights and the right to bring an action at law or in equity for any infringement, dilution, misappropriation or other violation thereof, and to collect all damages, settlements and proceeds relating thereto, and, to the extent not otherwise included, all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing (collectively, the “Copyright Collateral”); and
WHEREAS, pursuant to Section 3.5(a) of the Guarantee and Collateral Agreement, Grantor agreed to execute and deliver to the Trustee this Grant for purposes of recording the same with the United States Copyright Office (the “Copyright Office”) to confirm, evidence and perfect the security interest in the Copyright Collateral granted under the Guarantee and Collateral Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to all applicable terms and conditions of the Indenture (as defined below) and the Guarantee and Collateral Agreement, which are incorporated by reference as if fully set forth herein, to secure the Obligations, Grantor hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in Grantor’s right, title and interest in, to and under the Copyright Collateral, to the extent now owned or at any time hereafter acquired by Grantor.
Capitalized terms used in this Grant (including the preamble and the recitals hereto), and not defined in this Grant, shall have the meanings assigned to such terms in Annex A attached to the Base Indenture, dated as of April 6, 2022, by and between EWC Master Issuer LLC, a Delaware limited liability company, and Citibank, as Trustee and Securities Intermediary (as amended, supplemented or otherwise modified from time to time, the “Indenture”).
Collateral Agreement, which govern the Trustee’s interest in the Copyright Collateral and which shall control in the event of any conflict. Grantor hereby acknowledges the sufficiency and completeness of this Grant to create a security interest in the Copyright Collateral in favor of the Trustee for the benefit of the Secured Parties, and Grantor hereby requests the United States
Copyright Office to file and record this Grant together with the annexed Schedule 1.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this SUPPLEMENTAL GRANT OF SECURITY INTEREST IN COPYRIGHTS to be duly executed by its duly authorized officer as of the date and year first written above.
[SECURITIZATION ENTITY],
as Grantor
By:____________
Name:__________
Title:___________
Schedule 1 Copyrights
Title |
Reg. No. |
Reg. Date |
Owner |
Status |
|
|
|
|
|
Exhibit D
FORM OF PERMITTED RECIPIENT CERTIFICATION
Citibank, N.A., as Trustee 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000
Email: xxxxxxx.xxxxx@xxxx.xxx or call (000) 000-0000 to obtain Citibank, N.A. account manager’s email address
Attention: Agency & Trust – EWC Master Issuer LLC
Pursuant to Section 4.3 of the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”), the undersigned hereby certifies and agrees to the following conditions. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed thereto in Annex A to the Base Indenture.
(1) those personnel employed by it who need to know such information, (2) its attorneys
and outside auditors which have agreed to keep such information confidential and to treat such information as confidential information, or (3) a regulatory or self-regulatory authority pursuant to Requirements of Law or (B) by judicial process; provided, that it may disclose to any and all Persons without limitation of any kind, the tax treatment and tax structure of the transaction and any related tax strategies to the extent necessary to prevent the transaction from being described as a “confidential transaction” under U.S. Treasury Regulations Section 1.6011-4(b)(3)).
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized officer.
[Name of [Noteholder][Note Owner][prospective purchaser][third-party investor diligence provider][third-party service provider]]
By:____________
Title:___________
Date: ___________
Name: __________
Exhibit E
FORM OF CCR ELECTION NOTICE
CITIBANK, N.A.
EWC MASTER ISSUER LLC
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT NOTES. IF APPLICABLE, ALL DEPOSITORIES, CUSTODIANS AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE NOTES IN A TIMELY MANNER.
Notice Date: [insert date five (5) Business Days after Closing Date or any CCR Re- election Event]_
Notice Record Date:
Responses Due By: 5:00 p.m. (New York City time) on [insert date five (5) Business Days after the date of this notice]
Re: Election for Controlling Class Representative
Dear Noteholder:
Reference is hereby made to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”), as supplemented by each Series Supplement thereto (each, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, a “Series Supplement”) between the Master Issuer and the Trustee. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to such terms in the Base Indenture and the Series Supplements, as applicable.
Pursuant to Section 11.1(b) of the Base Indenture, you are hereby notified that:
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Agency & Trust – EWC Master Issuer LLC
Email: xxxxxxx.xxxxx@xxxx.xxx or call (000) 000-0000 to obtain Citibank, N.A. account manager’s email address
This Notice shall be construed in accordance with, and this Notice and any matters arising out of or relating in any way whatsoever to this Notice (whether in contract, tort or otherwise), shall be governed by, the law of the State of New York.
[Signature Page Follows]
Very truly yours, CITIBANK, N.A., as Trustee
By: _____________
Name: ___________
Title: ____________
cc: EWC Ventures, LLC, as Manager
EWC Master Issuer LLC, as Master Issuer
Exhibit F
FORM OF NOMINATION FOR CONTROLLING CLASS REPRESENTATIVE
I hereby submit the following nomination for election as the Controlling Class Representative:
Nominee:
By my signature below, I, (please print name) _ hereby certify that:
Note Owner
Noteholder
of the [Insert CUSIP Information][Insert Outstanding Principal Amount of Notes]1[Insert Original Face Amount][Insert Class A-1 Notes Voting Amount]2 of the Controlling Class set forth below.
$ of the Series [ ] Class [ ] Notes
Controlling Class Member or
1 In the case of the Class A-2 Notes. For your reference, the “Outstanding Principal Amount” is with respect to any one or more Series, Classes, Subclasses or Tranches of Notes, as applicable at any time, an amount equal to (a) the initial principal amounts of such Series, Class, Subclass or Tranche minus
(b) the aggregate amount of principal payments made to such Series, Class, Subclass or Tranche on or prior to such date.
2 In the case of the Class A-1 Notes. For your reference, the “Class A-1 Notes Voting Amount” is with respect to each Series of Class A-1 Notes Outstanding, the greater of (1) the Class A-1 Notes Maximum Principal Amount for such Series of Class A-1 Notes (after giving effect to any canceled commitments) and (2) the Outstanding Principal Amount of such Series of Class A-1 Notes.
Eligible Third-Party Candidate3
[Signature Page Follows]
3 An “Eligible Third-Party Candidate” is a candidate that is able to certify that it (i) is an established enterprise in the busines of providing credit support, governance or other advisory services to holders of notes similar to the Notes issued by the Master Issuer and (ii) is not (w) a Competitor, (x) a Tax- Restricted Affiliate, (y) a Franchisee or (z) formed solely to act as the Controlling Class Representative.
By: _________
Name: _________
Date submitted: ___________
Exhibit G
FORM OF BALLOT FOR CONTROLLING CLASS REPRESENTATIVE
CITIBANK, N.A.
EWC MASTER ISSUER LLC
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT NOTES. IF APPLICABLE, ALL DEPOSITORIES, CUSTODIANS AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE NOTES IN A TIMELY MANNER.
Notice Date: Notice Record Date:
Responses Due By: 5:00 p.m. (New York City time) on [insert date five (5) Business Days after the date of this notice]
Re: Election for Controlling Class Representative
To: The Controlling Class Members described below:
Class |
CUSIP4 |
|
|
|
|
|
|
Dear Noteholder:
Reference is hereby made to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”), as supplemented by each Series Supplement thereto (each, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, a “Series Supplement”) between the Master Issuer and the Trustee. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to such terms in the Base Indenture and the Series Supplements, as applicable.
Pursuant to Section 11.1(c) of the Base Indenture, please indicate your vote by submitting the attached Exhibit A with respect to your vote for Controlling Class Representative within [insert
4 No representation is made as to the correctness or accuracy of the CUSIP numbers either as printed on the Notes or as contained in this Notice. Such numbers are included solely for the convenience of the Holders.
date five (5) Business Days after the date of this notice] (the “CCR Election Period”) to my attention by email to xxxxxxx.xxxxx@xxxx.xxx or by calling (000) 000-0000 to obtain Citibank,
N.A. account manager’s email address.
This Notice shall be construed in accordance with, and this Notice and any matters arising out of or relating in any way whatsoever to this Notice (whether in contract, tort or otherwise), shall be governed by the law of the State of New York.
Very truly yours, CITIBANK, N.A., as Trustee
By:_________________
Name:_______________
Title:_______________
cc: EWC Ventures, LLC, as Manager
EWC Master Issuer LLC, as Master Issuer
Ballot for Controlling Class Representative
EXHIBIT A [TO EXHIBIT G]
BALLOT FOR CONTROLLING CLASS REPRESENTATIVE
EWC MASTER ISSUER LLC
Notice Date:
Notice Record Date: Responses Due By:
, 20
, 20
, 20
Please indicate your vote by checking the “Yes” or “No” box next to each candidate. You may only select “Yes” below for a single candidate.
The election outcome will be determined in accordance with Section 11.1(c) of the Base Indenture. Abstentions shall not be considered in the determination of the election outcome.
Yes |
No |
Nominee |
All Book- Entry Notes: List CUSIP and Outstanding Principal Amount5 |
All Definitive Notes or Class X- 0 Notes: List Outstanding Principal Amount or Class A-1 Notes Voting Amount, as applicable6 |
|
|
[Nominee 1] |
|
|
|
|
[Nominee 2] |
|
|
|
|
[Nominee 3] |
|
|
*If the beneficial owner of a book-entry position is completing this, please indicate your DTC custodian’s information below. (To avoid duplication of your vote, please do not respond additionally via your custodian.)
Bank: DTC #
[Signature Page Follows]
5 In the case of the Class A-2 Notes. For your reference, the “Outstanding Principal Amount” means, with respect to any one or more Series, Classes, Subclasses or Tranches of Notes, as applicable at any time, an amount equal to
(a) the initial principal amounts of such Series, Class, Subclass or Tranche minus (b) the aggregate amount of principal payments made to such Series, Class, Subclass or Tranche on or prior to such date.
6 In the case of the Class A-1 Notes. For your reference, the “Class A-1 Notes Voting Amount” means, with respect to each Series of Class A-1 Notes Outstanding, the greater of (1) the Class A-1 Notes Maximum Principal Amount for such Series of Class A-1 Notes (after giving effect to any canceled commitments) and (2) the Outstanding Principal Amount of such Series of Class A-1 Notes.
By my signature below, I, (please print name) , hereby certify that as of the date hereof I am an owner or beneficial owner of the [[Outstanding Principal Amount of Notes]7[Class A-1 Notes Voting Amount]8 of the Controlling Class set forth below:
$ of the Series of [ ] Class [ ] Notes
By:_________________ Name:_______________
Date:________________
[add medallion/notary block]
7 In the case of Class A-2 Notes.
8 In the case of Class A-1 Notes.
Exhibit H
FORM OF NOTE OWNER CERTIFICATE
Sent via email to: xxxxxxx.xxxxx@xxxx.xxx or call (000) 000-0000 to obtain Citibank, N.A. account manager’s email address
Re: Request to Communicate with Note Owners
Reference is made to Section 11.5(b) of the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”).
Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed thereto in Annex A to the Base Indenture.
The undersigned hereby certify that they are (i) VFN Noteholders who collectively hold beneficial interests of not less than (x) 5% of the aggregate principal amount of the Class A-1 Notes (including any unfunded commitments of such VFN Noteholders under any Variable Funding Note Purchase Agreement) or (y) 5% of the aggregate principal amount of the Notes or (ii) Noteholders of Notes other than the Class A-1 Notes who hold beneficial interests of not less than 5% of the aggregate principal amount of the Notes.
The undersigned wish to communicate with other Noteholders and VFN Noteholders with respect to their rights under the Indenture or under the Notes and hereby request that the Trustee deliver the enclosed notice or communication to all other Noteholders through the Applicable Procedures of each Clearing Agency, and to the VFN Noteholders through the applicable Class A-1 Administrative Agents, with respect to all Series of Notes Outstanding.
The undersigned agree to indemnify the Trustee for its costs and expenses in connection with the delivery of the enclosed notice or communication.
Note Owner Certificate
Dated:______________
Signed:______________
Printed Name:______________
Dated:______________
Signed:______________
Printed Name:______________
Enclosure(s): [ ]
Exhibit I
FORM OF CCR ACCEPTANCE LETTER
, 9
Re: Acceptance Letter for Controlling Class Representative
Greetings:
Reference is hereby made to the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”), as supplemented by each Series Supplement thereto (each, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, a “Series Supplement”) between the Master Issuer and the Trustee. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to such terms in the Base Indenture and the Series Supplements, as applicable.
Pursuant to Section 11.1(d) of the Base Indenture, the undersigned, as the [elected][appointed] Controlling Class Representative, hereby agrees to (i) act as the Controlling Class Representative and (ii) provide its name and contact information in the space provided below and permit such information to be shared with the Manager, the Securitization Entities, the Control Party, the Back-Up Manager, each Rating Agency and the Controlling Class Members. In addition, the undersigned, as the [elected][appointed] Controlling Class Representative, hereby represents and warrants that it is [a Controlling Class Member][an Eligible Third-Party Candidate].
[Signature Page Follows]
9 Insert date that is within [five (5) Business Days (if appointed)[fifteen (15) Business Days (if elected)] of receipt.
Very truly yours,
[NAME OF CCR ENTITY]
By:
Name: [NAME OF SIGNATORY] Title: [TITLE OF SIGNATORY]
Contact Information:
[NAME OF CCR ENTITY] [ADDRESS] [ATTENTION]
[EMAIL] [TELEPHONE]
CCR Acceptance Letter
EXHIBIT J
FORM OF NOTICE OF NON-ELECTION OF CONTROLLING CLASS REPRESENTATIVE
CITIBANK, N.A.
EWC MASTER ISSUER LLC
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT NOTES. IF APPLICABLE, ALL DEPOSITORIES, CUSTODIANS AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE NOTES IN A TIMELY MANNER.
Notice Date:
Notice Record Date:
Re: Election for Controlling Class Representative To Controlling Class Members described below:
Class |
CUSIP10 |
|
|
|
|
Dear Noteholder:
Reference is hereby made to (i) the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, N.A., as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Base Indenture”) and (ii) [the CCR Election Notice, dated [ ] (the “CCR Election Notice”) pursuant to which the Trustee provided notice of an election for a Controlling Class Representative and requested that any nominations for a Controlling Class Representative be submitted to the Trustee no later than five (5) Business Days from the date thereof]11[the CCR Ballot for Controlling Class Representative, dated [ ] (the “CCR Ballot”), pursuant to which the Trustee
10 No representation is made as to the correctness or accuracy of the CUSIP numbers either as printed on the Notes or as contained in this Notice. Such numbers are included solely for the convenience of the Holders.
11 Insert if no nominations were received by the date indicated in the CCR Election Notice.
provided a ballot for the proposed election of a Controlling Class Representative]12. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to such terms in the Base Indenture and the Series Supplements, as applicable.
[Pursuant to Section 11.1(c) of the Base Indenture, you are hereby notified that the Trustee received no valid nominations for Controlling Class Representative and, therefore, no election will occur. [Since there is currently a Controlling Class Representative, pursuant to Section 11.1(c)(iii) of the Base Indenture, the current Controlling Class Representative is deemed reelected and will remain the Controlling Class Representative]13]14
[Pursuant to Section 11.1(c) of the Base Indenture, you are hereby notified that (i) there is currently no Controlling Class Representative and (ii) [no CCR Candidate (as set forth in the CCR Ballot) received at least 50% of the CCR Voting Amount][votes were submitted by less than the CCR Quorum Amount]. Accordingly, pursuant to Section 11.1(c) of the Base Indenture, you are hereby notified that that no Controlling Class Representative has been elected. Until a CCR Re-election Event occurs and a new Controlling Class Representative is elected or selected pursuant to the terms set forth in Article XI of the Base Indenture, (i) unless otherwise expressly provided in the Related Documents, the Control Party shall exercise the rights of the Controlling Class Representative in accordance with the Control Party Standard and (ii) any deliverable or notice that is required to be provided to the Controlling Class Representative under a Related Document shall be delivered to the Control Party.]15
This Notice shall be construed in accordance with, and this Notice and any matters arising out of or relating in any way whatsoever to this Notice (whether in contract, tort or otherwise), shall be governed by, the law of the State of New York.
Very truly yours, CITIBANK, N.A., as Trustee
12 Insert if no CCR Candidate received the requisite percentage of votes.
13 Insert if there is an existing Controlling Class Representative.
14 Insert if no CCR nominations were received by the date indicated in the CCR Election Notice.
15 Insert if no CCR Candidate received the requisite percentage of votes.
By:
Name:
Title:
cc: EWC Master Issuer LLC, as Master Issuer EWC Ventures, LLC, as Manager
Drivetrain Agency Services, LLC, as Control Party FTI Consulting, Inc., as Back-Up Manager Controlling Class Members
Exhibit K
FORM OF COLLATERAL PROTECTION PAYMENT REQEST
Citibank, N.A., as Trustee 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000
Attention: Agency & Trust– EWC Master Issuer, LLC
[Pursuant to Section 5.3(d) of the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (the “Base Indenture”), the Manager hereby requests, pursuant to the Management Agreement, that the Trustee (i) withdraw from the Senior Notes Interest Reserve Account, an amount equal to $[ ] (which amount is equal to the lesser of (x) Senior Notes Collateral Protection Percentage of the amount of such Collateral Protection Payment and (y) the Collateral Protection Withdrawal Cap with respect to the Senior Notes Interest Reserve Account), and (ii) remit such amount to the Manager.]
[Pursuant to Section 5.3(d) of the Base Indenture, dated as of April 6, 2022, by and among EWC Master Issuer LLC, a Delaware limited liability company, as Master Issuer (the “Master Issuer”), and Citibank, as Trustee (in such capacity, the “Trustee”) and Securities Intermediary (the “Base Indenture”), the Manager hereby requests, pursuant to the Management Agreement, that the Trustee (i) withdraw from the Senior Subordinated Notes Interest Reserve Account, an amount equal to $[ ] (which shall be an amount equal to the lesser of (x) the Senior Subordinated Notes Collateral Protection Percentage of the amount of such Collateral Protection Payment and (y) the Collateral Protection Withdrawal Cap with respect to the Senior Subordinated Notes Interest Reserve Account), and (ii) remit such amount to the Manager.]16
Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed thereto in Annex A to the Base Indenture
[Signature Page Follows]
16 If a certificate is submitted pursuant to Section 5.3(d), a concurrent Collateral Protection Payment Request must be submitted to the Trustee with respect to amounts held in the Senior Notes Interest Reserve Account for an amount equal to the lesser of (x) the Senior Notes Collateral Protection Percentage of the amount of such Collateral Protection Payment and (y) the Collateral Protection Withdrawal Cap with respect to the Senior Notes Interest Reserve Account.
Very truly yours,
EWC, VENTURES, LLC, as
Manager
By:
Name: Title:
