7 No Default Interest on the Notes
Without prejudice to Clause 9 (Discharging Effect of Guarantor Payments ) hereof, the obligations of the Guarantor under this Guarantee do not extend to default interest
(Verzugszins), if any, payable by the Issuer in respect of any Note.
8 Priorities of Payments
The Guarantor will make, and will only be obliged to make, any payment hereunder only subject to and in accordance with the Pre-Guarantee Activation Event Priority of Payments, the Guarantee Activation Event Priority of Payments and the Guarantor Event of Default Priority of Payments, as applicable (including, as relevant the Guarantee Payment Order of Priority).
Pre-Guarantee Activation Event Priority of Payments
means in respect of payments to be made by the Guarantor, that, unless a Guarantee Activation Event has occurred, all available Guarantor Proceeds (including any Guarantor Proceeds standing to the credit of the Trust Account, if any) will on any Guarantor Payment Date be applied to the payment of the following amounts in the following order of priority:
(a) pari passu with each other, on a pro rata basis, fees and
expenses to be paid to the Trustee;
(b) pari passu with each other, on a pro rata basis, the
Administrative Expenses; (c) the Servicing Fee;
(d) pari passu with each other, on a pro rata basis, any
amounts due and payable by the Guarantor to any Liquidity Facility Provider and/or any Liquidity Facility Guarantor under any Liquidity Facility Agreement and any amounts due for payment by the Guarantor to any Relevant Liquidity Stand-by Ledger pursuant to a Liquidity
Facility Agreement;
(e) pari passu and on a pro rata basis any due and payable
Net Swap Payments and Swap Termination Payments under any Swap Agreement (other than any Excluded Swap Termination Payments);
(f) (aa) as long as no Potential Guarantee Event has occurred and is continuing, the Available Eligible Investment Purchase Amount to the purchase, or making of, any Eligible Investment until the aggregate outstanding nominal amount of all Eligible Investments is at least equal to the Required Eligible Investments Amount and (bb) as long as a Potential Guarantee Event has occurred and is continuing, the Available Eligible Investment Purchase Amount to the purchase, or making of, any Eligible Investment;
(g) any indemnity payable to a party under a Guarantor Document;
(h) any interest amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(i) any interest amount due and payable under the Junior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(j) any Purchase Price due and payable under the Receivables Purchase Agreement (and not discharged, including as a result of any permitted set-off
(Verrechnung));
(k) any Excess Enforcement Proceeds due and payable to the Originator;
(l) any principal amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(m) any principal amount due and payable under the Junior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(n) pari passu and on a pro rata basis any payments due
under any Swap Agreement (if any) other than those made under item (e) above;
(o) any due and payable Servicer Success Fee; (p) the Junior Residual Interest Amount; and
(q) any due and payable Transaction Gain to the shareholders of the Guarantor,
provided that, (A) the Guarantor will, and is entitled to, distribute available Guarantor Proceeds outside the priority of payments set out above on any day towards the discharge of any due and payable Statutory Claims, (B) the Guarantor shall apply any amounts received as disbursements of any funding pursuant to the Funding Agreement solely towards the payment of any Purchase Price irrespective of the aforesaid priority of payments, (C) the Guarantor will, and is entitled to, distribute available Guarantor Proceeds outside the priority of payments set out above on any day towards the discharge of any due and payable obligation to pay a Purchase Price to the Originator (including by way of any automatic set-off (Verrechnung) in accordance with the Guarantor Documents) and (D) if, in respect of the relevant Guarantor Payment Date, any of the amounts that would or could be payable pursuant to and in accordance with the Pre-Guarantee
Activation Event Priority of Payments cannot be determined as a result of any lack of the required information for making such determination, the relevant amounts will be determined by the Cash Administrator on the basis of reasonable estimates (which may, without limitation, also take into account historic data and projections) unless such lack of required information results from the Issuer not having made such required information available to the Cash Administrator (in which latter case the Cash Administrator may, but will not be required to, make such determinations).
Guarantee Activation Event Priority of Payments
means in respect of payments to be made by the Guarantor, that, after a Guarantee Activation Event has occurred (but unless a Guarantor Event of Default has occurred), all available Guarantor Proceeds (including any Guarantor Proceeds standing to the credit of the Trust Account, if any) will, subject to the proviso set out below, be applied on any Guarantor Payment Date to the payment of the following amounts in the following order of priority:
(a) pari passu with each other, on a pro rata basis, fees and
expenses to be paid to the Trustee;
(b) pari passu with each other, on a pro rata basis, the
Administrative Expenses; (c) the Servicing Fee;
(d) pari passu with each other, on a pro rata basis, any
amounts due and payable by the Guarantor to any Liquidity Facility Provider and/or any Liquidity Facility Guarantor under any Liquidity Facility Agreement and any amounts due for payment by the Guarantor to any Relevant Liquidity Stand-by Ledger pursuant to a Liquidity Facility Agreement;
(e) pari passu and on a pro rata basis any due and payable
Net Swap Payments and Swap Termination Payments under any Swap Agreement other than any Excluded Swap Termination Payments;
(f) pari passuwith each other and on a pro ratabasis (A) pari
passu and on a pro rata basis, any amount due and
payable under the Guarantee in respect of any interest amount, any amount of Guaranteed Scheduled Interest, any Default Compensation Amount or any Variable Guarantee Coupon Amount (including, in each case, any related Shortfall Amount) in respect of any Series of Notes and (B) pari passu and on apro ratabasis, the Calculated Guarantee Interest Payment Amount (to be booked on the Required Note Payment Ledger);
(g) (A) pari passu and on a pro rata basis, any amount due
and payable under the Guarantee in respect of any principal amount in relation to any Series of Notes and (B)
pari passu and on a pro rata basis, the Calculated
Guarantee Principal Payment Amount (to be booked on the Required Note Payment Ledger);
(h) pari passu and on a pro rata basis, any amount due and
payable under the Guarantee not covered by items (f) or (g) above;
(i) until all outstanding obligations of the Originator for the payment of interest and principal of all Series of Notes have been fully and finally discharged (including by way of a payment by the Guarantor under the Guarantee) and no Series of Notes remain outstanding, the Available Eligible Investment Purchase Amount towards the purchase, or
making, of any Eligible Investment;
(j) until all outstanding obligations of the Originator for the payment of interest and principal of all Series of Notes have been fully and finally discharged (including by way of a payment by the Guarantor under the Guarantee) and no Series of Notes remain outstanding, the lower of (A) the amount of the available Guarantor Proceeds remaining after the application towards items (a) to (i) above and (B) an amount equal to the balance booked on the Interest Deficiency Ledger on such Guarantor Payment Date (prior to the application of this item (j)), towards the purchase, or making, of any Eligible Investment;
(k) any indemnity payable to a party under a Guarantor Document;
(l) except on the Guarantor Payment Date falling in December of a calendar year, the Interest Buffer Amount (to be booked on the Interest Buffer Ledger);
(m) any interest amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(n) any interest amount due and payable under the Junior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(o) any Purchase Price due and payable under the Receivables Purchase Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(p) any Excess Enforcement Proceeds due and payable to the Originator;
(q) any principal amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(r) any principal amount due and payable under the Junior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(s) pari passu and on a pro rata basis any payments due
under any Swap Agreement (if any) other than those made under item (e) above;
(t) any due and payable Servicer Success Fee; (u) the Junior Residual Interest Amount; and
(v) any due and payable Transaction Gain to the shareholders of the Guarantor,
provided that, the Guarantor or the Trustee, as applicable, will, and are entitled to, distribute outside the priority of payments set out above any available Guarantor Proceeds (A) on any day towards the discharge of any due and payable Statutory Claims and (B) on any day (other than a Guarantor Payment Date) up to the aggregate amount booked on the Required Note Payment Ledger towards the discharge of any payment obligations of the Guarantor under the Guarantee in accordance with the Guarantee Payment Order of Priority,
and provided further that, if, in respect of the relevant Guarantor Payment Date, any of the amounts that would or could be payable pursuant to and in accordance with the Guarantee Activation Event Priority of Payments cannot be determined as a result of any lack of the required information for making such determination, the relevant amounts will be determined by the
Cash Administrator on the basis of reasonable estimates (which may, without limitation, also take into account historic data and projections) unless such lack of required information results from the Issuer not having made such required information available to the Cash Administrator (in which latter case the Cash Administrator may, but will not be required to, make such determinations).
Guarantor Event of Default Priority of Payments
means in respect of payments to be made by the Guarantor, that, after a Guarantor Event of Default has occurred, all available Guarantor Proceeds (including any Guarantor Proceeds standing to the credit of the Trust Account, if any) will, subject to the proviso set out below, be applied on any Guarantor Payment Date to the payment of the following amounts in the following order of priority:
(a) pari passu with each other, on a pro rata basis, fees and
expenses to be paid to the Trustee;
(b) pari passu with each other, on a pro rata basis, the
Administrative Expenses; (c) the Servicing Fee;
(d) pari passu with each other, on a pro rata basis, any
amounts due and payable by the Guarantor to any Liquidity Facility Provider and/or any Liquidity Facility Guarantor under any Liquidity Facility Agreement and any amounts due for payment by the Guarantor to any Relevant Liquidity Stand-by Ledger pursuant to a Liquidity Facility Agreement;
(e) pari passu and on a pro rata basis any due and payable
Net Swap Payments and Swap Termination Payments under any Swap Agreement (other than any Excluded Swap Termination Payments);
(f) on a pro rataand pari passu basis any amount due and payable under the Guarantee in respect of any interest amount, any amount of Guaranteed Scheduled Interest, any Default Compensation Amount or Variable Guarantee Coupon Amount in respect of any Series of Notes;
(g) on a pro rataand pari passu basis any amount due and payable under the Guarantee not covered by (f) above; (h) any indemnity payable to a party under a Guarantor
Document;
(i) any interest amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(j) any interest amount due and payable under the Junior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(k) any amount due and payable, but unpaid, in respect of the purchase, or making, of any Eligible Investment;
(l) any Purchase Price due and payable under the Receivables Purchase Agreement (and not discharged, including as a result of any permitted set-off
(Verrechnung));
(m) any Excess Enforcement Proceeds due and payable to the Originator;
(n) any principal amount due and payable under the Senior Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
Loan under the Funding Agreement (and not discharged as a result of any permitted set-off (Verrechnung));
(p) pari passu and on a pro rata basis any payments due
under any Swap Agreement (if any) other than those made under item (e) above;
(q) any due and payable Servicer Success Fee; (r) the Junior Residual Interest Amount; and
(s) any due and payable Transaction Gain to the shareholders of the Guarantor,
provided that, the Guarantor or the Trustee, as applicable, will, and are entitled to, distribute outside the priority of payments set out above any available Guarantor Proceeds on any day towards the discharge of any due and payable Statutory Claims,
and provided further that, if, in respect of the relevant Guarantor Payment Date, any of the amounts that would or could be payable pursuant to and in accordance with the Guarantor Event of Default Priority of Payments cannot be determined as a result of any lack of the required information for making such determination, the relevant amounts will be determined by the Cash Administrator on the basis of reasonable estimates (which may, without limitation, also take into account historic data and projections) unless such lack of required information results from the Issuer not having made such required information available to the Cash Administrator (in which latter case the Cash Administrator may, but will not be required to, make such determinations).
Guarantee Payment
Order of Priority means the following order of priority (solely in respect of amounts booked on the Required Note Payment Ledger): (a) on a pro rata and pari passu basis any amount due and payable under the Guarantee in respect of any interest amount, any amount of Guaranteed Scheduled Interest, any Default Compensation Amount or Variable Guarantee Coupon Amount in respect of any Series of Notes;
(b) on a pro rataand pari passu basis any amount due and payable under the Guarantee not covered by item (a) above,
provided that, if, in respect of the relevant date, any of the amounts that would or could be payable pursuant to and in accordance with the Guarantee Payment Order of Priority cannot be determined as a result of any lack of the required information for making such determination, the relevant amounts will be determined by the Cash Administrator on the basis of reasonable estimates (which may, without limitation, also take into account historic data and projections) unless such lack of required information results from the Issuer not having made such required information available to the Cash Administrator (in which latter case the Cash Administrator may, but will not be required to, make such determinations).
9 Discharging Effect of Guarantor Payments
Upon the discharge of any payment obligation of the Guarantor subsisting under this Guarantee in favour of any Noteholder in respect of principal, any amounts due, but unpaid to the Noteholder under the relevant Notes in respect of principal will be reduced by a corresponding amount. Upon the discharge of any payment obligation of the Guarantor towards a Noteholder in accordance with Clause 4.2.1 (Guarantee Payments in respect of a
Non-Payment of Interest) or Clause 5.2.2 (Payment of Interest due under the Notes and
Notes in respect of interest (other than default interest) will be reduced by a corresponding amount. In the event that the Guarantor makes any payment to a Noteholder in accordance with Clauses 4.3.1 or 6 (Payments of Variable Guarantee Coupon) hereof, such payment shall, at the same time and in an amount equal to the amount so paid, discharge any claims of such Noteholder against the Issuer for the payment of default interest under the relevant Notes.
10 Investor Report
The Guarantor shall (or shall procure that the Principal Paying Agent will, on behalf of the Guarantor) not later than (A) prior to the occurrence of a Guarantee Activation Event, one (1) Business Day prior to each Guarantor Payment Date falling in March, June, September and December of each year (each a "Relevant Guarantor Payment Date"), for the first time one (1) Business Day prior to the Relevant Guarantor Payment Date occurring after the calendar month in which the first Series of Notes Issue Date falls, and (B) after the occurrence of a Guarantee Activation Event, two (2) Business Days prior to each Guarantor Payment Date, or as soon as available thereafter, provide (i) the Noteholders of each Series of Notes in accordance with § 13 (Notices) of the Terms and Conditions, (ii) each Rating Agency (in a format complying with the then applicable standards of such Rating Agency) and (iii) as long as a Series of Notes is listed, or admitted to trading, on any stock exchange and the rules of such stock exchange so require, such stock exchange, with the Investor Report and make such Investor Report available upon request at the office of the Principal Paying Agent.
11 Genuine Contract for the benefit of the Noteholders
This Guarantee and any agreements contained herein constitute a genuine contract for the benefit of the Noteholders as third party beneficiaries pursuant to § 328 para 1 BGB and constitute the right of each Noteholder to require performance of the obligations undertaken herein directly from the Guarantor.
The Guarantor will make all payments under this Guarantee without the need for any Noteholder to initially institute proceedings against the Issuer.
12 Separate and Independent Guarantee Obligations; Extension of Guarantee 12.1 The obligations of the Guarantor under this Guarantee shall be separate and independent from
the obligation of the Issuer to satisfy its payment obligations under the Notes, shall exist irrespective of the legality, validity and binding effect or enforceability of the Notes. The Guarantor may not raise any objections of the Issuer against the Guarantor’s payment obligations under this Guarantee.
12.2 In the event of a substitution of the Issuer pursuant to the relevant Terms and Conditions, this