Risk Retention. (a) For so long as any Obligations are outstanding: (i), the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization Rules, it holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization Regulation, as represented by the Equityholder’s limited liability company interestinterests in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral Obligations; (DE) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules); (a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)..
Appears in 1 contract
Risk Retention. (a) For so long as On any date that any Obligations are outstanding: (i)outstanding and any Lender is an SR Lender, the Equityholder represents and undertakes to the Lenders that: :
(Ai) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU EU Securitization Rules, it holds and will retain on an on-going basis, a material net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 55.0% of the aggregate nominal value of all the Collateral Obligations Contracts (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation Contract by the Borrower); ;
(Bii) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(36(3) of the EU Securitization Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; Borrower (Cthe “Equity Interests”);
(iii) the Equityholder directly it holds and will directly retain 100% of the limited liability company interests in Equity Interests and the Borrower; Borrower shall have no other issued Equity Interests;
(Div) the Retained Economic Interest aggregate capital contributions made by the Equityholder with respect to the Equity Interests shall be based upon the original par amount represent at least 5.0% of the limited liability company interests of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Contracts measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate above;
(as per Section 10.24(dFv) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, : (x) short, hedge, hedge or otherwise mitigate its credit risk arising from or associated with the Retained Economic Interest or the Contracts, or (y) sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest or the Contracts (except except, in each case, as permitted by the EU Securitization RulesRules and, with respect to the sale of any Contracts, as permitted by the Transaction Documents); and
(vi) immediately following the settlement of each acquisition or origination of a Contract by the Borrower, not less than 51% of all of the Contracts will be Equityholder Originated Contracts, with such proportion of Equityholder Originated Contracts being measured on the basis of the aggregate outstanding principal balance of the Contracts at such time.
(b) Each Monthly Report shall contain or be accompanied by a certification from the Equityholder containing a representation that all of the obligations set forth in Section 10.22(a) above are being complied with, and have at all times been complied with, up to and on each date of the related Collection Period. The Equityholder shall provide, at its own cost and expense, to the Facility Agent and/or any SR Lender:
(i) prompt written notice of any breach of the obligations set forth in Section 10.22(a);
(aii) at the request of Facility Agent and/or any SR Lender, confirmation that all of the obligations set forth in Section 10.22(a) continue to be complied with (x) in the event of a material change in the transaction consummated by the Transaction Documents that materially impacts the performance of the Advances, or the risk characteristics of the Contracts and the Advances made with respect thereto; and (y) upon the occurrence of any Event of Default or becoming aware of any Unmatured Event of Default; and
(iii) all information, documents, reports and notifications that the SR Lenders may require in connection with their obligations under the EU Securitization Rules, including without limitation, any information, documentation, reports or notifications that the SR Lenders require for the purposes of Article 5(1)(e) of the EU Securitization Regulation, in such form, in such manner and at such times as prescribed by the Article 7 Transparency and Reporting Requirements, in respect of which it is agreed as follows:
(A) the Equityholder shall only be required to provide notification of any significant event of the type specified by Article 7(1)(g) of the EU Securitization Regulation to the extent that a notification or report in respect of the relevant event has not otherwise been provided by any person pursuant to any other provision of any Transaction Document; and
(B) the Equityholder shall not be required to provide any information, documents, reports or notifications: (x) relating to any limited partner of the Equityholder; (y) that is/are the subject of contractual confidentiality requirements; or (z) subject to laws governing the protection of confidentiality of information and the processing of personal data (all such information, documents, reports and notifications in subparagraphs (x) and (y) above being collectively referred to as “Restricted Information”), unless, if it is Restricted Information that cannot be anonymized or aggregated, and there is no existing confidentiality agreement permitting the disclosure of Restricted Information to the SR Lenders, the Facility Agent and/or the SR Lender enters into a confidentiality agreement reasonably acceptable to the Equityholder, with respect to such Restricted Information, so that it can be furnished to the Facility Agent and the SR Lenders.
(c) The Equityholder represents that: (i) it was not established for, and does not operate for, the sole purpose of securitizing exposures; (ii) it has, and reasonably expects to continue to have, a strategy and the capacity to meet its payment obligations consistent with a broader business model that involves material support from capital, assets, fees or other sources of income, by virtue of which it does not rely on (x) the Contracts or other assets securitized by it; or (y) the Retained Economic Interest or any other interest retained or proposed to be retained by it for purposes of the EU Risk Retention Requirement, and in each case, any related corresponding income as its sole or predominant source of revenue; and (iii) it has, and shall continue to retain, a management body with members that have the necessary experience to enable it to pursue its established business strategy, as well as an adequate corporate governance structure.
(d) The Equityholder represents and undertakes to the Lenders that: (A) the Equityholder Originated Contracts have been, and will continue to be, originated pursuant to a sound and well-defined criteria and clearly established processes for approving, amending, modifying, renewing and financing the Lease or Loan related to such Contracts and the Equityholder has, and it shall maintain effective systems in place to apply those criteria and processes to ensure that such Leases and Loans are granted and approved based on a thorough assessment of each Obligor’s creditworthiness; and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed in relation to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or Contract acquired by the Borrower in aggregate during the term of this Agreement; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the EquityholderBorrower, the Equityholder shall have originated over 50% reasonably believes in light of the information available to it and subject to a reasonable standard of care, that the entity which was, directly or indirectly, involved in the Lease or Loan which created the Contract granted such Lease or Loan pursuant to a sound and well-defined criteria and clearly established processes for approving, amending, modifying, renewing and financing the Lease or Loan and it had effective systems in place to apply those criteria and processes to ensure that the Leases and Loans were granted and approved based on a thorough assessment of the relevant Obligor’s creditworthiness.
(measured by total nominal amounte) Any Person accepting the benefits of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower this Section 10.22 shall be Retention Holder Originated deemed to have agreed to the terms set forth in this paragraph and each SR Lender hereby represents that is not relying on any Borrower, the Collateral ObligationsManager, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx of their respective Affiliates, for any financial, tax, legal, accounting, or otherwise seek to mitigate its credit risk regulatory advice in connection with respect to its limited liability company interests the matters set forth in the Borrower (except as permitted by the Retention Requirements)..this Section 10.22.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TriplePoint Venture Growth BDC Corp.)
Risk Retention. (a) For so long as any Obligations are outstanding: (i), the Equityholder represents and undertakes to the Lenders that: :
(Ai) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) “originator” for the purposes of the Retention RequirementsEU EU Securitization Rules, it the Equityholder holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 55.0% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or and acquisition of a Collateral Obligation by the Borrower); ;
(Bii) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(36(3) of the EU Securitization Regulation, as represented by the Equityholder’s direct limited liability company interestinterests interests in the Borrower; Borrower (Cthe “Equity Interests”);
(iii) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in Equity Interests and the Borrower; Borrower shall have no other issued equity interests;
(Div) the Retained Economic Interest aggregate capital contributions made by the Equityholder with respect to the Equity Interests shall be based upon the original par amount represent at least 5.0% of the limited liability company interests of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Obligations measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate above;
(as per Section 10.24(dFv) the Equityholder shall not, and it will procure that its Affiliates (including including, without limitation, the Borrower and any of the Borrower’s Affiliates) do not, not (x) short, hedge, or otherwise mitigate its credit risk arising from or associated with the Retained Economic Interest, or (y) sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except except, in each case, as permitted by the EU Securitization Rules);; and
(avi) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over more than 50% (measured by total nominal amount) of all of the Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall will be Retention Holder Originated Collateral Obligations, with such proportion of the Retention Holder Originated Collateral Obligations being measured on the basis of the nominal value at aggregate outstanding principal balance of the Collateral Obligations following the settlement of each respective acquisition and origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower Borrower.
(b) Each Collateral Report shall contain or be accompanied by a certification from the Equityholder containing a party other than representation that it is, and has at all times been, in compliance with its obligations set forth in clause (a) above up to and on each date of the Equityholderrelated Collection Period. In addition, the Equityholder shall provide to the Facility Agent and/or the SR Lenders, at its own cost and expense:
(i) prompt written notice of any breach of its obligations set forth in clause (a) above;
(ii) at the request of any SR Lender, confirmation that all of the obligations set forth in clause (a) above continue to be complied with (x) in the event of a material change in the structure of the transaction contemplated by the Transaction Documents that could have originated over 50% a material impact on the performance of the Advances, or the risk characteristics of the Collateral Obligations and the Advances made with respect thereto; (measured by total nominal amounty) upon the occurrence of any Event of Default or becoming aware of any breach of the obligations contained in any Transaction Documents; and (z) upon any material amendment of any Transaction Document or any additional Advances being made; and
(iii) all information, documents, reports and notifications that the SR Lenders may require in connection with their obligations under the EU Securitization Rules, including without limitation, any information, documentation, reports or notifications that the SR Lenders require for the purposes of Article 5(1)(e) of all Collateral Obligations originated or acquired the EU Securitization Regulation, in such form, in such manner and at such times as prescribed by the Article 7 Transparency and Reporting Requirements, in respect of which it is agreed as follows:
(A) the Borrower hereby agrees to ensure (or committed procure) continued compliance with, and is hereby appointed as to be acquireddesignated as the reporting entity for the purposes of, the Article 7 Transparency and Reporting Requirements and agrees to make available to the SR Lenders the Transparency Reports at the following times (each a “Submission Date”): (x) on a date that is no later than one month after the Distribution Date in May 2024, and (y) thereafter on a quarterly basis, on a date that is no later than three months after the then most recent Submission Date (and no later than one month after the then most recent Distribution Date);
(B) the data cut-off date in respect of each Transparency Report shall be no earlier than two months prior to such Transparency Report’s Submission Date (except as may otherwise be permitted or required at any time by the Article 7 Transparency and Reporting Requirements);
(C) the Borrower shall only be required to provide notification of any significant event of the type specified by Article 7(1)(g) of the EU Securitization Regulation to the extent that a notification or report in respect of the relevant event has not otherwise been provided by any person pursuant to any other provision of any Transaction Document;
(D) the Borrower shall not be required to provide any information, documents, reports or notifications: (x) that is/are the subject of contractual confidentiality requirements; or (y) that is/are subject to laws governing the protection of confidentiality of information and the processing of personal data (all such information, documents, reports and notifications referred to in sub-clauses (x) and (y) being collectively referred to as “Restricted Information”), unless, if it is Restricted Information that cannot be anonymized or aggregated, and there is no existing confidentiality agreement permitting the disclosure of Restricted Information to the SR Lenders, the Facility Agent and/or the SR Lenders enter into a confidentiality agreement reasonably acceptable to the Borrower, with respect to such Restricted Information, so that it can be furnished to the Facility Agent and the SR Lenders; and
(E) the Borrower is permitted to, and the SR Lenders should expect that the Borrower may, delegate all or any portion of its reporting obligations in respect of the Transparency Reports a third party service provider. Notwithstanding any such delegation, the Borrower shall remain obligated and liable for the performance of its obligations and duties under this Section 10.22(b) with respect to the preparation and provision of the Transparency Reports in accordance with the provisions hereof to the same extent and under the same terms and conditions as if it alone were preparing the Transparency Reports as required hereby.
(c) The Equityholder represents that: (i) its Equity Interests in the Borrower were duly approved in accordance with its organizational documents and investment policies; and (ii) in its capacity as Servicer, it established the transaction contemplated by the Transaction Documents by: (A) causing the formation of the Borrower as a wholly-owned subsidiary that is consolidated with the Equityholder for accounting purposes; (B) approving the eligibility criteria for the origination and acquisition of Collateral Obligations; (C) determining the transaction structure and negotiating and approving the terms of the Transaction Documents.
(d) The Equityholder represents that: (i) it was not established for, and does not operate for, the sole purpose of securitizing exposures; (ii) it has, and reasonably expects to continue to have, a strategy and the capacity to meet its payment obligations consistent with a broader business model that involves material support from capital, assets, fees or other sources of income, by virtue of which it does not rely on (A) the Collateral Obligations or other assets securitized by it; (B) the Equity Interests; or (C) the Retained Economic Interest or any other interest retained or proposed to be retained by it for purposes of the EU Risk Retention Requirement, and in each case, any related corresponding income as its sole or predominant source of revenue; and (iii) it has, and reasonably expects to continue to retain (or retain the services of) a management body with members that have the necessary experience to enable the Equityholder to pursue its established business strategy, as well as an adequate corporate governance structure.
(e) The Equityholder further represents and undertakes that:
(i) the Retention Holder Originated Collateral ObligationsObligations have been, such proportion measured and will continue to be, originated pursuant to a sound and well-defined credit granting criteria and clearly established processes for approving, amending, renewing and financing the Collateral Obligations and it has, and shall maintain effective systems in place to apply those criteria and processes to ensure that credit-granting is based on the basis a thorough assessment of the nominal value at Obligor’s creditworthiness; and
(ii) in relation to each respective other Collateral Obligation that is acquired by the Borrower, it has verified, and will continue to verify, the entity which was, directly or indirectly, involved in the original agreement which created the Collateral Obligation applied a sound and well-defined credit granting criteria to the origination of all the Collateral Obligations Obligation and clearly established processes for approving, amending, modifying, renewing and financing the Collateral Obligation, and had effective systems in place to apply those criteria and processes to ensure that are expected to be held the Collateral Obligation was granted and approved based on a thorough assessment of the relevant Obligor’s creditworthiness.
(f) Unless the Equityholder also serves as the Servicer hereunder, the Equityholder is, and will remain, ultimately responsible for and retain discretion over the actions of the Servicer; and any actions taken by the Borrower following Servicer in relation to the settlement of any such acquisition; matters outlined in clause (c) above are taken for, and (F) on behalf of, the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)..Equityholder.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Requirements Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization 2 Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral Obligations; (DED) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A10.24(d)(A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation Loan (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; Agreement and (iiBii) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)...
(b) The Borrower and the Equityholder shall cause each Collateral Report to contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent, the Collateral Agent and, each Lender (via the Collateral Agent’s Website) and Morningstar (via email at XXXXxxxxxxxxx@xxxxxxxxxxx.xxx): (A) prompt written notice of any breach of its obligations set forth in Section 10.24(a) (including if, for any reason, the Equityholder has ceased to hold the Retained Economic Interest at any time); and (B) all information that any such entity reasonably requests in connection with its obligations under the Retention Requirements, subject to any applicable confidentiality restrictions.
(c) The Equityholder shall additionally confirm its compliance with the conditions set forth in clause (a) above to the Borrower, the Administrative Agent and/or any Lender that is subject to the Retention Requirements:
(i) upon any written request by or on behalf of the Borrower (x) as a result of a material change in the performance of the Advances, the risk characteristics of the transaction or the Collateral Obligations from time to time and (y) upon the occurrence of any Event of Default or becoming aware of any breach of the obligations contained in any Transaction Document; and
(ii) promptly following a request by or on behalf of the Borrower, upon (x) any material amendment of any Transaction Document and (y) any additional Advances being made, in each case where the Borrower has received a request for the same from any Lender that is subject to the Retention Requirements.
(d) With respect to Collateral Obligations representing more than 50% of all Collateral Obligations acquired by the Borrower, the Equityholder shall be deemed to represent that it has either:
(A) purchased such Collateral Obligations in the secondary market for its own account and has retained credit and market risk in respect of such Collateral Obligation for at least 15 days on a weighted average basis before transfer to the Borrower; or (B) itself or through related entities, directly or indirectly, been involved in the original agreement which created such Collateral Obligations.
Appears in 1 contract
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the EquityholderRetention Provider, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral Obligations; (DED) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) with respect to each Collateral Obligation that it sells or transfers to the Borrower, it shall have held such Collateral Obligation for its own account prior to selling such obligation to the Borrower; (F) it shall originate (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation Loan (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; Agreement and (iiBii) in circumstances where relation to a Collateral Obligation is to be acquired by the Borrower that will not be acquired from a party other than the Equityholder, the Equityholder shall have originated only, over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; (G) in relation to every Collateral Obligation (other than cash) that it sells to the Borrower, it shall apply the same sound and well-defined criteria for credit-granting to such Collateral Obligations as it does to obligations to be held on its own books; (H) in relation to every Collateral Obligation (other than cash) that it sells to the Borrower in respect of which it has (x) not undertaken the original credit-granting or (y) is not active in credit-granting the specific type of obligation, it shall ensure that it obtains all the necessary information required to assess whether the credit-granting criteria that have been applied are as sound and well-defined as the credit-granting criteria it applies to non-securitized obligations, provided that the obligation in clauses (G) and (FH) shall cease to apply if the Retention Requirements limit such requirements to comply with such obligation to European regulated originator and/or sponsor institutions only; and (I) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)...
(b) The Borrower and the Equityholder shall cause each Collateral Report to contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent, the Collateral Agent and each Lender (via the Collateral Agent’s Website): (A) prompt written notice of any breach of its obligations set forth in Section 10.24(a) (including if, for any reason, the Equityholder has ceased to hold the Retained Economic Interest at any time); and (B) all information that any such entity reasonably requests in connection with its obligations under the Retention Requirements, subject to any applicable confidentiality restrictions.
(c) The Equityholder shall additionally confirm its compliance with the conditions set forth in clause (a) above to the Borrower, the Administrative Agent and/or any Lender that is subject to the Retention Requirements:
(i) upon any written request by or on behalf of the Borrower as a result of a material change in (x) the performance of the Advances, the risk characteristics of the transaction or the Collateral Obligations from time to time and (y) upon the occurrence of any Event of Default; and
(ii) promptly following a request by or on behalf of the Borrower, upon (x) any material amendment of any Transaction Document and (y) any additional Advances being made, in each case where the Borrower has received a request for the same from any Lender that is subject to the Retention Requirements.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization securitisation transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation Loan by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly it holds and will directly retain 100% of the limited liability company interests in of the BorrowerBorrower and the Borrower shall have no other issued equity interests; (D) the Retained Economic Interest shall be based upon aggregate capital contributions made by the original par amount of Equityholder with respect to the limited liability company interests in the Borrower shall represent at least 5.0% of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Obligations measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreementabove; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (FE) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx hxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Capital Requirements Regulation).
(b) Each Monthly Report shall contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent and/or any Lender that is subject to the Retention Requirements: (A) prompt written notice of any breach of its obligations set forth in Section 10.23(a)..; and (B) all information that any such entity requests in connection with its obligations under the Retention Requirements.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Business Development Corp of America)
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Requirements Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization 2 Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the EquityholderRetention ProviderEquityholder, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral Obligations; (DED) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) with respect to each Collateral Obligation that it sells or transfers to the Borrower, it shall have held such Collateral Obligation for its own account prior to selling such obligation to the Borrower; (F) it shallit shall (i) originate (as ias per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A10.24(d)(A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation Loan (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; Agreement and (iiBii) in circumstances relation tocircumstances where a Collateral Obligation is to be acquired by the Borrower that will not be acquired from a party other than the EquityholderEquityholder only,, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; (G) in relation to every Collateral Obligation (other than cash) that it sells to the Borrower, it shall apply the same sound and well-defined criteria for credit-granting to such Collateral Obligations as it does to obligations to be held on its own books; (H) in relation to every Collateral Obligation (other than cash) that it sells to the Borrower in respect of which it has (x) not undertaken the original credit-granting or (y) is not active in credit-granting the specific type of obligation, it shall ensure that it obtains all the necessary information required to assess whether the credit-granting criteria that have been applied are as sound and well-defined as the credit-granting criteria it applies to non-securitized obligations, provided that the obligation in clauses (G) and (H) shall cease to apply if the Retention Requirements limit such requirements to comply with such obligation to European regulated originator and/or sponsor institutions only; and (Iand (F) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)...
(b) The Borrower and the Equityholder shall cause each Collateral Report to contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent, the Collateral Agent and each Lender (via the Collateral Agent’s Website): (A) prompt written notice of any breach of its obligations set forth in Section 10.24(a) (including if, for any reason, the Equityholder has ceased to hold the Retained Economic Interest at any time); and (B) all information that any such entity reasonably requests in connection with its obligations under the Retention Requirements, subject to any applicable confidentiality restrictions.
(c) The Equityholder shall additionally confirm its compliance with the conditions set forth in clause (a) above to the Borrower, the Administrative Agent and/or any Lender that is subject to the Retention Requirements:
(i) upon any written request by or on behalf of the Borrower (x) as a result of a material change in (x) the performance of the Advances, the risk characteristics of the transaction or the Collateral Obligations from time to time and (y) upon the occurrence of any Event of Default or becoming aware of any breach of the obligations contained in any Transaction Document; and
(ii) promptly following a request by or on behalf of the Borrower, upon (x) any material amendment of any Transaction Document and (y) any additional Advances being made, in each case where the Borrower has received a request for the same from any Lender that is subject to the Retention Requirements.
(d) With respect to Collateral Obligations representing more than 50% of all Collateral Obligations acquired by the Borrower, the Equityholder shall be deemed to represent that it has either:
(A) purchased such Collateral Obligations in the secondary market for its own account and has retained credit and market risk in respect of such Collateral Obligation for at least 15 days on a weighted average basis before transfer to the Borrower; or
(B) itself or through related entities, directly or indirectly, been involved in the original agreement which created such Collateral Obligations.
Appears in 1 contract
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Requirements Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization 2 Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the Equityholder, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral Obligations; (DED) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A10.24(d)(A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation Loan (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; Agreement and (iiBii) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)...
(b) The Borrower and the Equityholder shall cause each Collateral Report to contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent, the Collateral Agent, each Lender (via the Collateral Agent’s Website) and Morningstar (via email at XXXXxxxxxxxxx@xxxxxxxxxxx.xxx): (A) prompt written notice of any breach of its obligations set forth in Section 10.24(a) (including if, for any reason, the Equityholder has ceased to hold the Retained Economic Interest at any time); and (B) all information that any such entity reasonably requests in connection with its obligations under the Retention Requirements, subject to any applicable confidentiality restrictions.
(c) The Equityholder shall additionally confirm its compliance with the conditions set forth in clause (a) above to the Borrower, the Administrative Agent and/or any Lender that is subject to the Retention Requirements:
(i) upon any written request by or on behalf of the Borrower (x) as a result of a material change in the performance of the Advances, the risk characteristics of the transaction or the Collateral Obligations from time to time and (y) upon the occurrence of any Event of Default or becoming aware of any breach of the obligations contained in any Transaction Document; and
(ii) promptly following a request by or on behalf of the Borrower, upon (x) any material amendment of any Transaction Document and (y) any additional Advances being made, in each case where the Borrower has received a request for the same from any Lender that is subject to the Retention Requirements.
(d) With respect to Collateral Obligations representing more than 50% of all Collateral Obligations acquired by the Borrower, the Equityholder shall be deemed to represent that it has either:
(A) purchased such Collateral Obligations in the secondary market for its own account and has retained credit and market risk in respect of such Collateral Obligation for at least 15 days on a weighted average basis before transfer to the Borrower; or
(B) itself or through related entities, directly or indirectly, been involved in the original agreement which created such Collateral Obligations.
Appears in 1 contract
Risk Retention. (a) i. For so long as any Obligations are outstanding: (i), ) the Equityholder Seller represents and undertakes to each Lender for the Lenders purposes of the Retention Requirements that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization securitisation transaction contemplated by this the Loan Agreement, which shall not be less than 55.00% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the EU Capital Requirements Regulation, Regulation (iiRegulation (EU) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization RegulationNo 575/2013), as represented by the EquityholderSeller’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly it holds and will directly retain up to 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held and the Borrower shall have no other issued equity interests; (D) the aggregate capital contributions made by the Equityholder, plus any increases Seller with respect to the limited liability company interests in the principal amount thereof, and calculated as a percentage Borrower shall represent at least 5.00% of the aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Obligations measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices)above; and (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder Seller shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx hxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the EU Capital Requirements Regulation referenced in (B) above).
ii. Each Monthly Report shall contain or be accompanied by a certification from the Seller containing a representation that all of the conditions set forth in clause (i) above are true and have been true up to and on each date of the related Collection Period. The Seller shall provide to the Administrative Agent and/or any Lender that is subject to the Retention Requirements: (A) prompt written notice of any breach of its obligations set forth in Section 5.1(o)(i)..; and (B) all information that any such entity requests in connection with its obligations under the Retention Requirements to the extent the same is not subject to a duty of confidentiality.
Appears in 1 contract
Samples: Sale and Contribution Agreement (FS Investment Corp III)
Risk Retention. (a) i. For so long as any Obligations are outstanding: (i), ) the Equityholder Seller represents and undertakes to the Lenders Lender for the purposes of the Retention Requirements that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization securitisation transaction contemplated by this the Loan Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the EU Capital Requirements Regulation, Regulation (iiRegulation (EU) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization RegulationNo 575/2013), as represented by the EquityholderSeller’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly it holds and will directly retain up to 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held and the Borrower shall have no other issued equity interests; (D) the aggregate capital contributions made by the Equityholder, plus any increases Seller with respect to the limited liability company interests in the principal amount thereof, and calculated as a percentage Borrower shall represent at least 5.0% of the aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Obligations measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices)above; and (E) it shall (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; and (iiB) in circumstances where a Collateral Obligation is to be acquired by the Borrower from a party other than the Equityholder, the Equityholder shall have originated over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral Obligations, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; and (F) the Equityholder Seller shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the EU Capital Requirements Regulation referenced in (B) above).
ii. Each Monthly Report shall contain or be accompanied by a certification from the Seller containing a representation that all of the conditions set forth in clause (i) above are true and have been true up to and on each date of the related Collection Period. The Seller shall provide to the Administrative Agent and/or any Lender that is subject to the Retention Requirements: (A) prompt written notice of any breach of its obligations set forth in Section 5.1(o)(i)..; and (B) all information that any such entity requests in connection with its obligations under the Retention Requirements.
Appears in 1 contract
Samples: Sale and Contribution Agreement (FS Investment Corp II)
Risk Retention. (a) i. For so long as any Obligations are outstanding: (i)outstanding and any Lender is subject to the EU Securitization Rules, the Equityholder Seller, in its capacity represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) “originator” for the purposes of the Retention RequirementsEU Requirements, represents and undertakes to the Lender for the purposes of the Retention Requirements that: (A) itEU Securitization Rules, it the Seller holds and will retain on an on-going basis, a material net economic interest in relation to the securitization transaction contemplated by this Agreementthe Loan Agreement in the form of equity ownership of the Purchaser, which shall not be less than 5% (or such lesser amount that may be permitted under the EU Securitization Rules) of the aggregate nominal value of all the Collateral Obligations owned by the Purchaser (the “Retained Economic Interest”) ), measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower), with suchPurchaser); (B) the Retained Economic Interest takes to taketakes the form of a first loss tranche in constitutedin accordance with (i) paragraph 1paragraph (d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(36(3) of the EU Securitization Regulation, as represented by the EquityholderSeller’s limited liability company interestinterests interestdirect equity interests in the BorrowerBorrowerPurchaser; (CBC) the Equityholder directly itthe Seller holds and will directly retain up to 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held and the Borrower shall have no other issued equity interests in the Purchaser; (CD) the aggregate capital contributions made by the Equityholder, plus any increases Seller with respect to the limited liability companyits equity interests in the principal BorrowerPurchaser shall represent at least 5%5.0% (or such lesser amount thereof, and calculated as a percentage that may be permitted under the EU Securitization Rules) of the aggregate of the nominal value of all the Collateral Obligations; (DE) its retention Obligations measured at the time of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations above; and (without taking account of acquisition prices); (E) it shall (i) originate (as per Section 10.24(dFD) the Equityholder Seller shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to(E) the Seller shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s AffiliatesPurchaser) do not, short, hedge, otherwise mitigate its credit risk or with respect to its limited liability company interests in the Borroweror sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest or the Collateral Obligations (except as permitted by the EU Retention Requirements)EU Securitization Rules);
(a) The Equityholder represents Rules and undertakes with respect to the Lenders that: (A) sale of any Collateral Obligations, as permitted by the Transaction Documents); and (BF) below) over greater than 50% (measured by total nominal amount) of all of the Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall will be Retention Holder Originated Collateral Obligations, with such proportion of Retention Holder Originated Collateral Obligations being measured on the basis of the nominal value at aggregate outstanding principal balance of the Collateral Obligations following the settlement of each respective acquisition or origination of a Collateral Obligation by the Purchaser.
ii. Each Monthly Report shall contain or be accompanied by a certification from the Seller containing a representation that all of the conditions set forth in clause (i) above are true and have been true up to and on each date of the related Collection Period. For so long as any Obligations are outstanding, theThe Seller shall provide to the Facility Agent and/or any Lender that is subject to the Retention RequirementsEU Securitization Rules: (A) prompt written notice of any breach of itsthe obligations set forth in Section 5.1(o)clause (i) above; (B) confirmation that all of the conditions set forth in clause (i) above continue to be complied with (x) in the event of a material change in the performance of the Collateral Obligations or the risk characteristics of the Collateral Obligations xxxxx the Advances made with respect thereto and (y) upon the occurrence of any Facility Termination Event of Default or it becoming aware of any breach of the obligations contained in any Transaction Documents; and (C) subject to any duties of confidentiality by which it is bound and in respect of which the Seller shall use all reasonable efforts to cause any applicable confidentiality restrictions to be removed, all information, documents and reports that any such entity reasonably requests in connection with its obligations under the Retention RequirementsEU Securitization Rules.
iii. The Seller represents that: (A) it is not an entity that has been established or that operates for the sole purpose of securitizing exposures; (B) it has substantial other assets and is engaged in activities other than its interests in the Collateral Obligations and activities related to the Transaction; (C) its limited liability company interest in the Borrower was duly approved in accordance with its governing documents and investment policies; and (D) it established thehas been involved in the establishment of the securitization transaction contemplated by the Transaction Documents by: (xA) causing the incorporation of the BorrowerPurchaser as itsa wholly-owned subsidiary; (y)B) selecting the Servicer for appointment by the Purchaser; (C) by approving the eligibility criteria for the Purchaser’s origination and acquisition of Collateral Obligations, including the terms and conditions of the agreements and documents evidencing the Purchaser’s origination and acquisition of any such Collateral LoanObligation (other than cash or those acquired from interest proceeds) originated or acquired by the Borrower in aggregate during the term of this AgreementObligations; and (iiBz) in circumstances where a Collateral Obligation is to be acquired by determining the Borrower from a party other than transaction structure andD) negotiating and approving the Equityholderexecution of the Transaction Documents with the various transaction partiesby the Purchaser.
iv. The Seller represents that it was not established for, and does not operate for, the Equityholder shall have originated over 50% sole purpose of securitizing exposures.
v. The Seller represents and undertakes that: (measured by total nominal amountA) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsObligations have been, and will continue to be, originated pursuant to a sound and well-defined criteria and clearly established processes for approving, amending, modifying, renewing and financing the Underlying Instruments related to such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations and the Seller has, and it shall maintain effective systems in place to apply those criteria and processes to ensure that such Underlying Instruments are expected to be held by the Borrower following the settlement granted and approved based on a thorough assessment of any such acquisitioneach Obligor’s creditworthiness; and (FB) in relation to each other Collateral Obligation acquired by the Equityholder shall not sell Purchaser, the Seller has verified, and will continue to verify, that the entity which was, directly or enter into any credit risk mitigationindirectly, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests involved in the Borrower (except as permitted by Underlying Instruments which created the Retention Requirements)..Collateral Obligations granted such Underlying Instruments pursuant to a sound and well-defined criteria and clearly established processes for approving, amending, modifying, renewing and financing the Underlying Instruments and it had effective systems in place to apply those criteria and processes to ensure that the Underlying Instruments were granted and approved based on a thorough assessment of the relevant Obligor’s creditworthiness.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Risk Retention. (a) For so long as any Obligations are outstanding: (i), ) the Equityholder represents and undertakes to the Lenders that: (A) as an originator (as such term is defined in the Capital RequirementsEU Securitization Regulation) for the purposes of the Retention RequirementsEU Securitization RulesRequirements, it holds and will retain on an on-going basis, a net economic interest in the securitization securitisation transaction contemplated by this Agreement, which shall not be less than 5% of the aggregate nominal value of all the Collateral Obligations (the “Retained Economic Interest”) measured at the time of origination (being the occasion of each origination or acquisition of a Collateral Obligation by the Borrower); (B) the Retained Economic Interest takes the form of a first loss tranche in accordance with (i) paragraph 1paragraph (d1(d) of Article 405 of the Capital Requirements Regulation, (ii) paragraph 1(d) of Article 51 of the AIFMD Level 2 Regulation and (iii) paragraph 2(d) of Article 254 of the Solvency II Level 26(3) of the EU Securitization Regulation, as represented by the Equityholder’s limited liability company interestinterests interest in the Borrower; (C) the Equityholder directly holds and will directly retain 100% of the limited liability company interests in the Borrower; (D) the Retained Economic Interest shall be based upon the original par amount of the limited liability company interests of the Borrower held by the EquityholderRetention Provider, plus any increases in the principal amount thereof, and calculated as a percentage of the nominal value of the Collateral ObligationsObligations and Eligible Investments; (DED) its retention of the Retained Economic Interest shall be measured upon each origination as described in (A) above on the basis of the nominal value of the Collateral Obligations (without taking account of acquisition prices); (E) with respect to each Collateral Obligation that it sells or transfers to the Borrower, it shall have held such Collateral Obligation for its own account prior to selling such obligation to the Borrower; (F) it shall originate (i) originate (as per Section 10.24(dF) the Equityholder shall not, and it will procure that its Affiliates (including without limitation, the Borrower and any of the Borrower’s Affiliates) do not, short, hedge, otherwise mitigate its credit risk or sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Economic Interest (except as permitted by the EU Securitization Rules);
(a) The Equityholder represents and undertakes to the Lenders that: (A) and (B) below) over 50% (measured by total nominal amount) of all Collateral Obligations originated or and Eligible Investments acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination or acquisition of any Collateral LoanObligation Loan or Eligible Investment (other than cash or those acquired from interest proceedsInterest Proceeds) originated or acquired by the Borrower in aggregate during the term of this Agreement; Agreement and (iiBii) in circumstances where relation to a Collateral Obligation is to be acquired by the Borrower that will not be acquired from a party other than the Equityholder, the Equityholder shall have originated only, over 50% (measured by total nominal amount) of all Collateral Obligations originated or acquired (or committed to be acquired) by the Borrower shall be Retention Holder Originated Collateral ObligationsBorrower, such proportion measured on the basis of the nominal value at each respective origination of all Collateral Obligations that are expected to be held by the Borrower following the settlement of any such acquisition; (G) in relation to every Collateral Obligation and Eligible Investment (other than cash) that it sells to the Borrower, it shall apply the same sound and well-defined criteria for credit-granting to such Collateral Obligations as it does to obligations to be held on its own books; (H) in relation to every Collateral Obligation and Eligible Investment (other than cash) that it sells to the Borrower in respect of which it has (x) not undertaken the original credit-granting or (y) is not active in credit-granting the specific type of obligation, it shall ensure that it obtains all the necessary information required to assess whether the credit-granting criteria that have been applied are as sound and well-defined as the credit-granting criteria it applies to non-securitised obligations, provided that the obligation in clauses (G) and (FH) shall cease to apply if the Retention Requirements limit such requirements to comply with such obligation to European regulated originator and/or sponsor institutions only; and (I) the Equityholder shall not sell or enter into any credit risk mitigation, short positions or any other xxxxxx or otherwise seek to mitigate its credit risk with respect to its limited liability company interests in the Borrower (except as permitted by the Retention Requirements)...
(b) The Borrower and the Equityholder shall cause each Monthly Report to contain or be accompanied by a certification from the Equityholder containing a representation that all of the conditions set forth in clause (a) above are true and have been true up to and on each date of the related Collection Period. The Equityholder shall provide to the Administrative Agent and/or any Lender that is subject to the Retention Requirements: (A) prompt written notice of any breach of its obligations set forth in Section 10.23(a) (including if, for any reason, the Equityholder has ceased to hold the Retained Economic Interest at any time); and (B) all information that any such entity reasonably requests in connection with its obligations under the Retention Requirements, subject to any applicable confidentiality restrictions.
(c) The Equityholder shall additionally confirm its compliance with the conditions set forth in clause (a) above to the Borrower, the Administrative Agent and/or any Lender that is subject to the Retention Requirements:
(i) upon any written request by or on behalf of the Borrower as a result of a material change in (x) the performance of the Advances, the risk characteristics of the transaction or the Collateral Obligations and Eligible Investments from time to time and (y) upon the occurrence of any Event of Default; and
(ii) promptly following a request by or on behalf of the Borrower, upon (x) any material amendment of any Transaction Document and (y) any additional Advances being made, in each case where the Borrower has received a request for the same from any Lender that is subject to the Retention Requirements. -89-
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
