Setoff by Cowen Clause Samples

Setoff by Cowen. Upon an Event of Default by the Customer and its subsequent failure to cure pursuant to any applicable grace period, if any, Cowen is hereby authorized, in its discretion, to set off and otherwise apply any and all of the obligations of Cowen then due to Customer against any and all Obligations of Customer then due to the Cowen Entities (whether at maturity, upon acceleration or termination or otherwise). Without limiting the generality of the foregoing, upon the occurrence of the Close-out of any Contract with ▇▇▇▇▇, ▇▇▇▇▇ shall have the right to net the Close-out Amounts due from the Cowen Entities to Customer and from Customer to the Cowen Entities, so that a single settlement payment (the “Net Payment”) shall be payable by one party to the other, which Net Payment shall be immediately due and payable (subject to the other provisions hereof and of any Contract with Cowen); provided that if any Close-out Amounts may not be netted against all other Close-out Amounts, such excluded Close-out Amounts shall be netted among themselves to the fullest extent permitted under Applicable Law. Upon the occurrence of a Close-out, the Cowen Entities may also (i) liquidate, apply and set off any or all Collateral against any Net Payment, payment, or Obligation owed to them under any Contract with a Cowen Entity and (ii) set off and net any Net Payment, payment or obligation owed by them under any Contract with a Cowen Entity against (x) any or all collateral or margin (or the Cash value thereof) posted by a Cowen Entity to Customer under any Contract with a Cowen Entity and (y) any Net Payment, payment or Obligation owed by Customer to a Cowen Entity (whether mature or unmatured, fixed or contingent, liquidated or unliquidated).
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Related to Setoff by Cowen

  • Payments on Termination and Survival of Certain Rights and Obligations Payments to the Advisor pursuant to this Section 13.03 shall be subject to the 2%/25% Guidelines to the extent applicable. (i) After the Termination Date, the Advisor shall not be entitled to compensation for further services hereunder except it shall be entitled to receive from the Company within 30 days after the effective date of such termination (A) all unpaid reimbursements of expenses and all earned but unpaid fees payable to the Advisor prior to termination of this Agreement and (B) the Subordinated Performance Fee Due Upon Termination, provided that no Subordinated Performance Fee Due Upon Termination will be paid if the Company has paid or is obligated to pay the Subordinated Incentive Fee. (ii) The Advisor shall promptly upon termination: (a) pay over to the Company all money collected pursuant to this Agreement, if any, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled; (b) deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board; (c) deliver to the Board all assets and documents of the Company then in the custody of the Advisor; and (d) cooperate with the Company to provide an orderly transition of advisory functions.

  • Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings (a) Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 19, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable. (b) After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

  • REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER (a) Seller shall (i) in the case of a Material Defect other than a Qualified Mortgage Material Defect, not later than ninety (90) days after Seller’s receipt of notice of such Material Defect from any party to the Pooling and Servicing Agreement or (ii) in the case of a Qualified Mortgage Material Defect, not later than eighty-five (85) days after the earlier of (x) the discovery by Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of a Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) or eighty-five (85) day period, as applicable, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Issuing Entity reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or successor REO Loan at the applicable Purchase Price and in conformity with this Agreement and the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan or successor REO Loan (provided that (x) such affected Mortgage Loan or successor REO Loan was not itself a Qualified Substitute Mortgage Loan and (y) in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and the Pooling and Servicing Agreement; provided, that except with respect to a Material Defect resulting solely from the failure by Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date and, except with respect to a Qualified Mortgage Material Defect, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or successor REO Loan or substitute a Qualified Substitute Mortgage Loan) and provided, further, that with respect to such Extended Cure Period Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and, prior to the occurrence of a Consultation Termination Event and subject to the DCH Limitations, the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions Seller is pursuing in connection with the cure thereof and stating that Seller anticipates that such Material Defect will be cured within the Extended Cure Period; provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of Seller to have received the recorded document, then Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect so long as Seller certifies to the Trustee, the Master Servicer, the Special Servicer and the Certificate Administrator no less frequently than every thirty (30) days thereafter that the Material Defect is still in effect solely because of its failure to have received the recorded document and that Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). If the affected Mortgage Loan is to be repurchased, funds in the amount of the Purchase Price, together with the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4.1.12 above attributable to the Asset Review with respect to such Mortgage Loan, shall be remitted by Seller by wire transfer to the Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis. If Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between Seller and the Special Servicer on behalf of the Issuing Entity (and, prior to the occurrence of a Control Termination Event and subject to the DCH Limitations, with the consent of the Directing Certificateholder) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the Special Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4.1.12 above attributable to the Asset Review of such Mortgage Loan. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Issuing Entity regarding the related Material Defect in lieu of any obligation of Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between Seller and the Special Servicer on behalf of the Issuing Entity, provided, that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude Seller or the Master Servicer or the Special Servicer, as applicable, from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Qualified Mortgage Material Defect may not be cured by a Loss of Value Payment. Seller’s obligation to cure any Material Defect or to repurchase or substitute for any affected Mortgage Loan or, if Seller agrees to make a Loss of Value Payment, to pay the Loss of Value Payment pursuant to this Section 5 shall constitute the sole remedy available to Purchaser in connection with a Material Defect; provided, that this limitation shall not in any way limit Purchaser’s rights or remedies upon breach of any other representation or warranty or covenant by Seller set forth in this Agreement (other than those set forth in Exhibit 2). If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Issuing Entity (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Issuing Entity that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4.1.12 above to the extent not previously paid to the Asset Representations Reviewer by Seller attributable to the Asset Review of such Mortgage Loan. Upon such remittance, Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to Seller. Notwithstanding anything contained in this Agreement, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect. If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and Seller provides an Opinion of Counsel to the effect that such release would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Issuing Entity and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation. (b) Whenever a Qualified Substitute Mortgage Loan is substituted for a Defective Loan by Seller as contemplated by this Section 5, upon direction by the Master Servicer or the Special Servicer, as applicable, Seller shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan after the related Due Date in the month of substitution, and Periodic Payments due with respect to the corresponding replaced Mortgage Loan (a “Deleted Mortgage Loan”) on or prior to the related Due Date in the month of substitution (but after the related Cut-off Date), shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of substitution, and Periodic Payments due with respect to the related Deleted Mortgage Loan after the related Due Date in the month of substitution, shall not be part of the Trust Fund and are to be remitted by the Master Servicer to Seller promptly following receipt. If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the Master Servicer or the Special Servicer, as applicable, Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of a Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects. If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply. (c) Seller shall be entitled, and Purchaser shall cause the Pooling and Servicing Agreement to entitle Seller upon (A) deposit of the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 in the account designated therefor by the Certificate Administrator on behalf of the Trustee as the assignee of Purchaser (or the Master Servicer on behalf of the Trustee), (B) if applicable, receipt by the Trustee as the assignee of Purchaser (or the Custodian) of the Mortgage File for any Qualified Substitute Mortgage Loan to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by Seller, and (C) delivery by Seller to each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer of a receipt executed by Seller evidencing such repurchase or substitution, to (i) a release of the Mortgage File and any other items previously required to be delivered by Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the repurchased or replaced Mortgage Loan to Seller or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by Seller and are reasonably necessary to vest in Seller or its designee the legal and beneficial ownership of such repurchased or replaced Mortgage Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents, any portion of the related Servicing File and together with any Escrow Payments, reserve funds and any other items previously required to be delivered by Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the Custodian, the Master Servicer or the Special Servicer, as the case may be, with respect to the repurchased or replaced Mortgage Loan, in each case at the expense of Seller, and (iii) the execution and delivery of notice to the affected Mortgagor of such transfer of such repurchased or replaced Mortgage Loan. (d) [Reserved]. (e) Seller acknowledges and agrees that Purchaser shall have no liability to Seller for any failure of Seller or any party to the Pooling and Servicing Agreement (other than Purchaser itself) to perform its obligations provided for thereunder. (f) If Seller (i) receives from any Person (other than the Depositor) any request or demand for repurchase or replacement of a Mortgage Loan because of a breach of a representation or warranty or a document defect (any such request or demand for repurchase or replacement, a “Repurchase Request”); (ii) rejects any Repurchase Request or is in dispute with the Person making any Repurchase Request as to the merits of such Repurchase Request (a “Dispute”); or (iii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request, then Seller shall deliver notice of such Repurchase Request, rejection, Dispute or withdrawal (each, a “Seller 15Ga-1 Notice”) to the Depositor within ten (10) Business Days of Seller’s receipt thereof (or in the case of a rejection or Dispute, the occurrence thereof). Each Seller 15Ga-1 Notice may be delivered by electronic means and shall identify (a) the date on which such Repurchase Request was received, rejected, first disputed or withdrawn, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request or withdrawal by such Person (or, with respect to any notice of rejection or Dispute by Seller, the reason for such rejection or the nature of such Dispute). Seller represents and warrants that any information Seller provides to Purchaser pursuant to this Section 5(f) shall be true, complete and correct as of the date Seller provides such information to Purchaser. (g) Each of Seller and Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing Seller or Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or

  • Termination and Waiver of Rights of First Refusal The rights of first refusal established by this Section 4 shall not apply to, and shall terminate upon the earlier of (i) the effective date of the registration statement pertaining to the Company’s Initial Offering or (ii) an Acquisition. Notwithstanding Section 5.5 hereof, the rights of first refusal established by this Section 4 may be amended, or any provision waived with and only with the written consent of the Company and the Major Investors holding a majority of the Registrable Securities held by all Major Investors, or as permitted by Section 5.5.

  • Representations and Warranties will be Relied Upon by the Company 8.1 The Subscriber acknowledges that the representations and warranties contained herein are made by it with the intention that such representations and warranties may be relied upon by the Company and its legal counsel in determining the Subscriber's eligibility to purchase the Shares under applicable securities legislation, or (if applicable) the eligibility of others on whose behalf it is contracting hereunder to purchase the Shares under applicable securities legislation. The Subscriber further agrees that by accepting delivery of the certificates representing the Shares on the Closing Date, it will be representing and warranting that the representations and warranties contained herein are true and correct as at the Closing Date with the same force and effect as if they had been made by the Subscriber on the Closing Date and that they will survive the purchase by the Subscriber of Shares and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber of such Shares.