Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution: (a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”); (b) each Substitute Asset is an Eligible Asset on the date of substitution; (c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset; (d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets; (e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset; (f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset; (g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur; (h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount; (i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and (j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 5 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Amortization Period (and after the occurrence of a Termination Event or during the Turbo Amortization Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to either of the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Amortization Period (and after the occurrence of a Termination Event or during the Turbo Amortization Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or substitution, (yI) if any Pool Concentration Criteria was the Advances Outstanding do not satisfied immediately prior to giving effect to such inclusionexceed the lesser of (i) the Facility Amount and (ii) the Maximum Availability, and (II) the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to Combined Advances Outstanding do not exceed the inclusion of such Substitute AssetCombined Commitment Amount;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to either of the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; Agent with the parties hereto acknowledging that the Turbo Period has commenced as consent of the Turbo Effective DatePurchaser Agents), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset other than the Tandem Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Adjusted Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetAdjusted Facility Amount and (ii) the Adjusted Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Adjusted Facility Amount, calculated on an annualized basis commencing with the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Adjusted Facility Amount, calculated on an annualized basis commencing with the Closing Date; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; Agent with the parties hereto acknowledging that the Turbo Period has commenced as consent of the Turbo Effective DatePurchaser Agents), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided provided, that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset[Reserved];
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of (1) the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount, calculated on an annualized basis commencing with the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and, calculated on an annualized basis commencing with the Closing Date;
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 2.18 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; Agent with the parties hereto acknowledging that the Turbo Period has commenced as consent of the Turbo Effective DatePurchaser Agents), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount, calculated on an annualized basis commencing with the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and, calculated on an annualized basis commencing with the Closing Date;
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 2.18 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Substitution of Assets. On The Reinsurer may at any day time, by written request to the Trustee and the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), substitute or exchange assets contained within the Trust Account with other Eligible Trust Account Assets (such substituted or exchanged Eligible Trust Account Assets are referred to herein as “Replacement Assets”). The Reinsurer represents and warrants that (a) the assets contained within the Trust Account (including any such Replacement Assets) shall remain Eligible Trust Account Assets following such substitution or exchange; (b) the Book Value, including accrued interest, and Market Value, including accrued interest, of such Replacement Assets that are deposited in or credited to the Trust Account shall be at least equal to the Book Value, including accrued interest, and Market Value, including accrued interest, respectively, of the assets contained within the Trust Account being removed from the Trust Account; (c) the difference, whether positive or negative, between Market Value, including accrued interest, and Book Value, including accrued interest, of the assets being removed from the Trust Account will be treated as a realized gain or loss, respectively, and new Interest Maintenance Reserve will be established in accordance with SAP for such realized gain or loss for the purposes of this Agreement (“Deemed Sale”); (d) the Replacement Assets shall be deposited into the Trust Account prior to or simultaneously with the occurrence removal of a Termination Event assets from the Trust Account in connection with any such substitution or exchange; and (e) the Reinsurer shall not make any substitutions under this Section 9.7 if it is in default in any material respect under any provision of this Agreement or the commencement Trust Agreement. Any written request provided by the Reinsurer pursuant to this Section 9.7 shall include the Reinsurer’s representation and warranty that such substitution or exchange meets the requirements of this Section 9.7. Notwithstanding the Turbo Period foregoing, if an asset in the Trust Account no longer qualifies as an Eligible Trust Account Asset, then, within five (and after 5) Business Days following the occurrence date on which the Reinsurer becomes aware of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date)such circumstance, the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, Reinsurer shall replace any Asset such asset with one or more Eligible Trust Account Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each meeting the requirements of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset;
(d) for purposes only of substitutions pursuant to this Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied9.7.
Appears in 2 contracts
Samples: Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co), Annuity Reinsurance Agreement (Talcott Resolution Life Insurance Co)
Substitution of Assets. On any day prior to the occurrence of an Event of Default, a Termination Potential Event of Default or the commencement a Servicer Event of the Turbo Period Default (and after the occurrence of a Termination Event or during the Turbo Period such an event at the sole discretion of the Administrative Note Purchaser Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 6.1 and subject to the other restrictions contained herein, replace any Purchased Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided provided, that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(ai) the Seller has recommended to the Administrative Note Purchaser Agent (with a copy to the Collateral Custodian) in writing that the Purchased Asset to be replaced should be replaced (each each, a “Replaced Asset”);
(bii) each Substitute Asset is an Eligible Asset on the date of substitution;
(ciii) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Note Balance does not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetBorrowing Base and (ii) the Note Purchase Obligation Limit;
(div) for purposes only of substitutions pursuant to Section 4.6 6.1(b) undertaken because an a Purchased Asset has become a Warranty Asset, the aggregate sum of the Outstanding Asset Balance Principal Balances of such Substitute Assets shall be equal to or greater than the aggregate sum of the Outstanding Asset Principal Balances of the Replaced Assets;
(ev) for purposes only of substitutions pursuant to Section 4.6 6.1(b) undertaken because an a Purchased Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life Weighted Average Life, and no lower Weighted Average Loan Margin or Weighted Average Loan Rate, than the Replaced AssetAssets;
(fvi) all representations and warranties of the Seller contained in Section 4.1 3.1 and Section 4.2 3.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(gvii) the substitution of any Substitute Asset does not cause an Event of Default or a Termination Potential Event or Unmatured Termination Event of Default to occur;
(hviii) the sum of (1) the Outstanding Principal Balances of all Purchased Assets that are Substitute Assets plus (2) the Outstanding Principal Balances of all Purchased Assets that have been sold to Affiliates pursuant to Discretionary Sales does not exceed 15% of the highest Eligible Asset Amount of any month during the 12 month period immediately preceding such date of determination;
(ix) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance Principal Balances of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; andhighest Eligible Asset Amount of any month during the 12 month period immediately preceding such date of determination;
(jx) the Seller shall deliver to the Administrative Indenture Trustee and the Note Purchaser Agent on the date of such substitution a certificate of a Responsible an Authorized Officer certifying that each of the foregoing is true and correct as of such date; and
(xi) each Purchased Asset that is replaced pursuant to the terms of this Section 6.1 shall be substituted only with another Purchased Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver the documents described in Section 2.2 to the Collateral Custodian and the related Required Asset DocumentsServicing File to Servicer. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, Purchaser shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this AgreementAgreement and the other Basic Documents, all of the right, title and interest of the Administrative Agent, as agent for the Secured PartiesPurchaser, in, to and under such Replaced Asset, but without any other representation and warranty of any kind, express or implied. Purchaser shall, at the sole expense of Servicer, execute such documents and instruments of transfer as may be prepared by Servicer on behalf of Seller and take other such actions as shall reasonably be requested by Seller to effect the transfer of such Asset pursuant to this Section 6.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date)day, the Seller may, subject to the conditions set forth in this Section 2.18 2.19 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(ai) the Seller has recommended to the Administrative Agent (with a copy to the Collateral CustodianTrustee and the Backup Servicer) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”)) and the Administrative Agent has consented in writing to such replacement in its sole and absolute discretion;
(bii) each Substitute Asset is an Eligible Asset on the date of substitution;
(ciii) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion sum of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance Principal Balances of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset sum of the Principal Balances of the Replaced Assets;
(eiv) for purposes only of substitutions pursuant to Section 4.6 2.19(b) undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life Weighted Average Life than the Replaced AssetAssets;
(fv) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(gvi) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(hvii) the sum of (1) the Outstanding Asset Balance Principal Balances of all Assets that are Substitute Assets plus (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i2) the sum of (a) the Outstanding Asset Balance Principal Balances of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale Discretionary Sales does not exceed 15% of the highest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(viii) the sum of the Principal Balances of all Substitute Assets substituted for Delinquent Loans, Charged-Off Loans and Warranty Assets shall not exceed 10% of the Facility Amount; andhighest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(jix) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(x) each Asset that is replaced pursuant to the terms of this Section 2.19 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset DocumentsLoan Documents to the Trustee in accordance with Section 3.2(c), and deliver the related Servicing File to the Servicer. In connection with any such substitution, the Administrative AgentTrustee, as agent for on behalf of the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative AgentTrustee, as agent for the benefit of the Secured Parties, in, to and under such Replaced Asset, but without any other representation and warranty of any kind, express or implied.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
Substitution of Assets. On any day prior to the occurrence of an Event of Default, a Termination Potential Event of Default or the commencement a Servicer Event of the Turbo Period Default (and after the occurrence of a Termination Event or during the Turbo Period such an event at the sole discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective DateNote Purchaser), the Seller may, subject to the conditions set forth in this Section 2.18 6.1 and subject to the other restrictions contained herein, replace any Purchased Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided provided, that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(ai) the Seller has recommended to the Administrative Agent Note Purchaser (with a copy to the Collateral Custodian) in writing that the Purchased Asset to be replaced should be replaced (each each, a “Replaced Asset”);
(bii) each Substitute Asset is an Eligible Asset on the date of substitution;
(ciii) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Note Balance does not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetBorrowing Base and (ii) the Note Purchase Obligation Limit;
(div) for purposes only of substitutions pursuant to Section 4.6 6.1(b) undertaken because an a Purchased Asset has become a Warranty Asset, the aggregate sum of the Outstanding Asset Balance Principal Balances of such Substitute Assets shall be equal to or greater than the aggregate sum of the Outstanding Asset Principal Balances of the Replaced Assets;
(ev) for purposes only of substitutions pursuant to Section 4.6 6.1(b) undertaken because an a Purchased Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life Weighted Average Life, and no lower Weighted Average Loan Margin or Weighted Average Loan Rate, than the Replaced AssetAssets;
(fvi) all representations and warranties of the Seller contained in Section 4.1 3.1 and Section 4.2 3.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(gvii) the substitution of any Substitute Asset does not cause an Event of Default or a Termination Potential Event or Unmatured Termination Event of Default to occur;
(hviii) the sum of (1) the Outstanding Principal Balances of all Purchased Assets that are Substitute Assets plus (2) the Outstanding Principal Balances of all Purchased Assets that have been sold to Affiliates pursuant to Discretionary Sales does not exceed 15% of the highest Eligible Asset Amount of any month during the 12 month period immediately preceding such date of determination;
(ix) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance Principal Balances of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; andhighest Eligible Asset Amount of any month during the 12 month period immediately preceding such date of determination;
(jx) the Seller shall deliver to the Administrative Agent Indenture Trustee and the Note Purchaser on the date of such substitution a certificate of a Responsible an Authorized Officer certifying that each of the foregoing is true and correct as of such date; and
(xi) each Purchased Asset that is replaced pursuant to the terms of this Section 6.1 shall be substituted only with another Purchased Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver the documents described in Section 2.2 to Custodian and the related Servicing File to the Collateral Custodian the related Required Asset DocumentsServicer. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, Purchaser shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this AgreementAgreement and the other Basic Documents, all of the right, title and interest of the Administrative Agent, as agent for the Secured PartiesPurchaser, in, to and under such Replaced Asset, but without any other representation and warranty of any kind, express or implied. Purchaser shall, at the sole expense of Servicer, execute such documents and instruments of transfer as may be prepared by Servicer on behalf of Seller and take other such actions as shall reasonably be requested by Seller to effect the transfer of such Asset pursuant to this Section 6.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective DateBuyer), the Seller may, subject to the conditions set forth in this Section 2.18 6.2 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent Buyer (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each each, a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 6.1 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances Balance of the Replaced AssetsAsset;
(e) for purposes only of substitutions pursuant to Section 4.6 6.1 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced AssetAssets;
(f) all representations and warranties of the Seller contained in Section Sections 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets, Charged–Off Asset and Warranty Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall does not exceed 10% of the Facility Amount; and, calculated on an annualized basis commencing on the Closing Date;
(j) the Seller shall deliver to the Administrative Agent Buyer on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. ; and
(k) each Asset that is replaced pursuant to the terms of this Section 6.2 shall be substituted only with another Asset that meets the foregoing conditions.
(l) In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, Buyer shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, Buyer in, to and under such Replaced Asset, and the Buyer shall be deemed to represent and warrant that it has the company authority and has taken all necessary company action to accomplish such transfer, but without any other representation and warranty of any kindwarranty, express or implied.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 1 contract
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective DateBuyer), the Seller may, subject to the conditions set forth in this Section 2.18 6.2 and subject to the other restrictions contained herein, replace any Asset Loan with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent Buyer (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 4.7 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances Balance of the Replaced AssetsAsset;
(e) for purposes only of substitutions pursuant to Section 4.6 4.7 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced AssetAssets;
(f) all representations and warranties of the Seller contained in Section Sections 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount, calculated on an annualized basis commencing on the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets, Charged–Off Asset and Warranty Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall does not exceed 10% of the Facility Amount; and, calculated on an annualized basis commencing on the Closing Date;
(j) the Seller shall deliver to the Administrative Agent Buyer on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 6.2 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, Buyer shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, Buyer in, to and under such Replaced Asset, and the Buyer shall be deemed to represent and warrant that it has the company authority and has taken all necessary company action to accomplish such transfer, but without any other representation and warranty of any kindwarranty, express or implied.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective DateBuyer), the Seller may, subject to the conditions set forth in this Section 2.18 6.2 and subject to the other restrictions contained herein, replace any Asset other than the Tandem Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent Buyer (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each each, a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Adjusted Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetAdjusted Facility Amount and (ii) the Adjusted Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 4.7 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances Balance of the Replaced AssetsAsset;
(e) for purposes only of substitutions pursuant to Section 4.6 4.7 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced AssetAssets;
(f) all representations and warranties of the Seller contained in Section Sections 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Adjusted Facility Amount, calculated on an annualized basis commencing on the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets, Charged–Off Asset and Warranty Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall does not exceed 10% of the Adjusted Facility Amount; and, calculated on an annualized basis commencing on the Closing Date;
(j) the Seller shall deliver to the Administrative Agent Buyer on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 6.2 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, Buyer shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, Buyer in, to and under such Replaced Asset, and the Buyer shall be deemed to represent and warrant that it has the company authority and has taken all necessary company action to accomplish such transfer, but without any other representation and warranty of any kindwarranty, express or implied.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Capitalsource Inc)
Substitution of Assets. On any day prior (a) Subject to the occurrence of a Termination Event or the commencement of the Turbo Period (terms and after the occurrence of a Termination Event or during the Turbo Period at the discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 4.8, Borrower may obtain a release of the Lien of a Security Document (and subject to the other restrictions contained herein, replace any related Loan Documents) encumbering a Pledged Asset with one (a “Substituted Asset”) by substituting therefor another Eligible Asset owned or more Eligible Assets acquired by a Borrower (each, a “Substitute Asset”), which such Substitute Asset may be the same or a different Asset Type and have the same or a different Advance Rate or Applicable Spread, so long as no Borrowing Base Deficiency shall result from such substitution; provided that no such replacement substitution may occur after the date that is ninety (90) days prior to the Revolving Credit Termination Date and substitution shall occur unless not be allowed more than three (3) times in a calendar year and provided, further, that each of the following conditions is to closing set forth in Section 6.2 of this Agreement shall have been satisfied as or waived in connection with such substitution. Borrower shall deliver written notice of the date of such replacement and substitution:
(a) the Seller has recommended any proposed substitution to the Administrative Agent not less than fifteen (with a copy 15) Business Days prior to the Collateral Custodian) in writing that date on which such substitution is anticipated to close, which notice shall state the Asset to be replaced should be replaced (each a “Replaced anticipated closing date of such substitution and shall identify the Substitute Asset”);.
(b) Upon satisfaction or waiver of each of the conditions precedent set forth in Section 6.2 of this Agreement, the Administrative Agent will release its Lien from the Substituted Asset and the Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue shall be deemed to be satisfied after giving effect to such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusion, the degree of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to the inclusion of such Substitute Asset;
(d) a Pledged Asset for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at this Agreement. At the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative AgentAgent shall determine a Base Case DSCR, as agent a Base Case Market Value and an Asset Value for the Secured Partiessuch Substitute Asset.
(c) If Borrower exercises its right to substitute a Substitute Asset for a Substituted Asset under this Section 4.8, shall, automatically and without further action, Borrower shall be deemed obligated to transfer pay to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, by the close of the Business Day of such substitution or termination, as agent for the Secured Partiescase may be, inan amount equal to Administrative Agent’s and Lenders’ actual cost (including all reasonable fees and out of pocket expenses and all commissions) of (i) entering into replacement Security Documents; (ii) evaluating the Eligible Assets proposed to be substituted in accordance with the procedures of this Section 4.8, (iii) paying any costs arising under Section 3.11 in connection therewith, if any; and/or (iv) to the extent not included in (ii), terminating transactions or substituting loans in like transactions with third parties in connection with or as a result of such substitution.
(d) With respect to any substitution under this Section 4.8, Administrative Agent may conclusively rely upon, and under such Replaced Assetshall incur no liability to Borrower in acting upon, but without any representation and warranty of any kind, express request or impliedother communication that Administrative Agent reasonably believes to have been given or made by an authorized representative on Borrower’s behalf.
Appears in 1 contract
Samples: Revolving Credit Loan and Security Agreement (Ashford Hospitality Trust Inc)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the discretion of the Administrative Agent; Agent with the parties hereto acknowledging that the Turbo Period has commenced as consent of the Turbo Effective DatePurchaser Agents), the Seller may, subject to the conditions set forth in this Section 2.18 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that provided, that, no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(a) the Seller has recommended to the Administrative Agent (with a copy to the Collateral Custodian) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset Balances of the Replaced Assets;
(e) for purposes only of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life than the Replaced Asset;
(f) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(h) the sum of (1) the Outstanding Asset Balance of all Assets that are Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount, calculated on an annualized basis commencing with the Closing Date;
(i) the sum of (a) the Outstanding Asset Balance of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Assets, Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent and Warranty Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale shall not exceed 10% of the Facility Amount; and, calculated on an annualized basis commencing with the Closing Date;
(j) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 2.18 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset Documents. In connection with any such substitution, the Administrative Agent, as agent for the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative Agent, as agent for the Secured Parties, in, to and under such Replaced Asset, but without any representation and warranty of any kind, express or implied.
Appears in 1 contract
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the sole discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 2.19 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(ai) the Seller has recommended to the Administrative Agent (with a copy to the Collateral CustodianTrustee and the Backup Servicer) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(bii) each Substitute Asset is an Eligible Asset on the date of substitution;
(ciii) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(div) for purposes only of substitutions pursuant to Section 4.6 2.19(b) undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance sum of the Principal Balances of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset sum of the Principal Balances of the Replaced Assets;
(ev) for purposes only of substitutions pursuant to Section 4.6 2.19(b) undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life Weighted Average Life than the Replaced AssetAssets;
(fvi) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(gvii) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(hviii) the sum of (1) the Outstanding Asset Balance Principal Balances of all Assets that are Substitute Assets plus (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i2) the sum of (a) the Outstanding Asset Balance Principal Balances of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale Discretionary Sales (other than the Discretionary Sales of Assets (i) occurring within 90 days after any such Asset became part of the Collateral and (ii) where following any such Discretionary Sale, a portion of such Asset remained part of the Collateral) does not exceed 15% of the highest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(ix) the sum of the Principal Balances of all Substitute Assets substituted for Delinquent Loans, Charged-Off Loans and Warranty Assets shall not exceed 10% of the Facility Amount; andhighest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(jx) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(xi) each Asset that is replaced pursuant to the terms of this Section 2.19 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset DocumentsLoan Documents to the Trustee and the related Servicing File to the Servicer. In connection with any such substitution, the Administrative AgentTrustee, as agent for on behalf of the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative AgentTrustee, as agent for the benefit of the Secured Parties, in, to and under such Replaced Asset, but without any other representation and warranty of any kind, express or implied.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
Substitution of Assets. On any day prior to the occurrence of a Termination Event or the commencement of the Turbo Period (and after the occurrence of a Termination Event or during the Turbo Period Date at the sole discretion of the Administrative Agent; the parties hereto acknowledging that the Turbo Period has commenced as of the Turbo Effective Date), the Seller may, subject to the conditions set forth in this Section 2.18 2.19 and subject to the other restrictions contained herein, replace any Asset with one or more Eligible Assets (each, a “Substitute Asset”); provided provided, that no such replacement shall occur unless each of the following conditions is satisfied as of the date of such replacement and substitution:
(ai) the Seller has recommended to the Administrative Agent (with a copy to the Collateral CustodianTrustee and the Backup Servicer) in writing that the Asset to be replaced should be replaced (each a “Replaced Asset”);
(bii) each Substitute Asset is an Eligible Asset on the date of substitution;
(ciii) (x) if all Pool Concentration Criteria were satisfied immediately prior to giving effect to the inclusion of the Substitute Asset, all Pool Concentration Criteria continue to be satisfied after giving effect to any such inclusion or (y) if any Pool Concentration Criteria was not satisfied immediately prior to giving effect to such inclusionsubstitution, the degree Advances Outstanding do not exceed the lesser of non-satisfaction of each Pool Concentration Criteria will be maintained or improved after giving effect to (i) the inclusion of such Substitute AssetFacility Amount and (ii) the Maximum Availability;
(div) for purposes only of substitutions pursuant to Section 4.6 219(b) undertaken because an Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance sum of the Principal Balances of such Substitute Assets shall be equal to or greater than the aggregate Outstanding Asset sum of the Principal Balances of the Replaced Assets;
(ev) for purposes only of substitutions pursuant to Section 4.6 2.19(b) undertaken because an Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the Seller, shall have no greater weighted average life Weighted Average Life than the Replaced AssetAssets;
(fvi) all representations and warranties of the Seller contained in Section 4.1 and Section 4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(gvii) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured Termination Event to occur;
(hviii) the sum of (1) the Outstanding Asset Balance Principal Balances of all Assets that are Substitute Assets plus (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) does not exceed 20% of the Facility Amount;
(i2) the sum of (a) the Outstanding Asset Balance Principal Balances of all Substitute Assets (other than in the case of substitutions pursuant to Section 4.6 undertaken because an Asset has become a Warranty Asset) substituted for Delinquent Assets and Charged-Off Assets plus (b) the Outstanding Asset Balance of all Delinquent Assets and Charged-Off Assets (determined without regard to the first two provisos in the definition of Outstanding Asset Balance) that have been sold pursuant to an Optional Sale Discretionary Sales does not exceed 15% of the highest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(ix) the sum of the Principal Balances of all Substitute Assets substituted for Delinquent Loans, Charged-Off Loans and Warranty Assets shall not exceed 10% of the Facility Amount; andhighest Principal Collateral Value of any month during the 12 month period immediately preceding such date of determination;
(jx) the Seller shall deliver to the Administrative Agent on the date of such substitution a certificate of a Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(xi) each Asset that is replaced pursuant to the terms of this Section 2.19 shall be substituted only with another Asset that meets the foregoing conditions. In addition, the Seller shall in connection with such substitution deliver to the Collateral Custodian the related Required Asset DocumentsLoan Documents to the Trustee and the related Servicing File to the Servicer. In connection with any such substitution, the Administrative AgentTrustee, as agent for on behalf of the Secured Parties, shall, automatically and without further action, be deemed to transfer to the Seller (or any Affiliate of the Seller designated by the Seller), free and clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the Administrative AgentTrustee, as agent for the benefit of the Secured Parties, in, to and under such Replaced Asset, but without any other representation and warranty of any kind, express or implied.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
