CYN » Topics » ARTICLE V MISCELLANEOUS

These excerpts taken from the CYN 8-K filed Dec 8, 2009.

MISCELLANEOUS

 

Section 4.1       If any provision of this First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 through operation of Section 318(c) thereof, such imposed duties shall control.

 

ARTICLE XIV.

MISCELLANEOUS

 

SECTION 14.1     Notices.  All notices provided for in this Declaration of Trust shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by registered or certified mail, as follows:

 

This excerpt taken from the CYN 8-K filed Nov 24, 2008.

ARTICLE V
MISCELLANEOUS

 

5.1.                              Termination.  This Agreement may be terminated at any time prior to the Closing:

 

(a)                                  by either the Investor or the Company if the Closing shall not have occurred by the 30th calendar day following the Signing Date; provided, however, that in the event the Closing has not occurred by such 30th calendar day, the parties will consult in good faith to determine whether to extend the term of this Agreement, it being understood that the parties shall be required to consult only until the fifth day after such 30th calendar day and not be under any obligation to extend the term of this Agreement thereafter; provided,  further, that the right to terminate this Agreement under this Section 5.1(a) shall not be available to any party whose breach of any representation or warranty or failure to perform any obligation under this Agreement shall have caused or resulted in the failure of the Closing to occur on or prior to such date; or

 

(b)                                 by either the Investor or the Company in the event that any Governmental Entity shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and nonappealable; or

 

(c)                                  by the mutual written consent of the Investor and the Company.

 

In the event of termination of this Agreement as provided in this Section 5.1, this Agreement shall forthwith become void and there shall be no liability on the part of either party hereto except that nothing herein shall relieve either party from liability for any breach of this Agreement.

 

5.2.                              Survival of Representations and Warranties.  All covenants and agreements, other than those which by their terms apply in whole or in part after the Closing, shall terminate as of the Closing.  The representations and warranties of the Company made herein or in any certificates delivered in connection with the Closing shall survive the Closing without limitation.

 

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5.3.                              Amendment.  No amendment of any provision of this Agreement will be effective unless made in writing and signed by an officer or a duly authorized representative of each party; provided that the Investor may unilaterally amend any provision of this Agreement to the extent required to comply with any changes after the Signing Date in applicable federal statutes.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative of any rights or remedies provided by law.

 

5.4.                              Waiver of Conditions.  The conditions to each party’s obligation to consummate the Purchase are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law.  No waiver will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver.

 

These excerpts taken from the CYN 10-Q filed Nov 7, 2008.
Miscellaneous

 

No Award shall be deemed salary or compensation for the purpose of computing benefits under any employee benefit Plan or other arrangement of the Bank, unless the Plan Administrator, in its sole discretion, shall determine otherwise.

 

The Human Resources Department shall make available copies of the Plan and all amendments and any administrative rules or procedures to all Participants at reasonable times upon request.

 

The Plan and the payment of Awards shall be subject to all applicable federal and state laws, rules, and regulations, including the withholding of any federal, state, local or foreign taxes and to such approvals by any government or regulatory agency as may be required.  The terms of the Plan shall be binding upon the Bank and its successors and assigns.

 

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Miscellaneous

 

No Award shall be deemed salary or compensation for the purpose of computing benefits under any employee benefit Plan or other arrangement of the Bank, unless the Plan Administrator, in its sole discretion, shall determine otherwise.

 

The Human Resources Department shall make available copies of the Plan and all amendments and any administrative rules or procedures to all Participants at reasonable times upon request.

 

The Plan and the payment of Awards shall be subject to all applicable federal and state laws, rules, and regulations, including the withholding of any federal, state, local or foreign taxes and to such approvals by any government or regulatory agency as may be required.  The terms of the Plan shall be binding upon the Bank and its successors and assigns.

 

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This excerpt taken from the CYN 10-K filed Mar 1, 2007.

ARTICLE VIII
MISCELLANEOUS

                8.1  Notices. All notices hereunder may, and (except as otherwise provided herein) if requested by either Participant or CNB shall, be in writing; provided however, that routine informational communications, requests to adjust participations, and similar matters may be made orally. All written notices shall be deemed to be sufficiently given when personally delivered to the party receiving the notice or mailed to such party by certified or registered mail, return receipt requested, postage prepaid, or sent by overnight courier service to the address set forth below:

 

TO CNB:

City National Bank
400 North Roxbury Drive
Beverly Hills, California 90210
Attention: Vice Chairman and Chief Financial Officer

 

 

TO HOLDINGS:

CN Real Estate Investment Holdings, Inc.
606 South Olive Street, Sixth Floor
Los Angeles, California 90014
Attention: Chief Financial Officer

 

 

TO THE REIT:

CN Real Estate Investment Corporation
606 South Olive Street, Sixth Floor
Los Angeles, California 90014
Attention: Chief Financial Officer

 

                Any party hereto may change its address for notice, and designate or change the location and manner in which payments to such party shall he made, by a notice in writing to the other parties, given as above provided. Notices which are mailed or sent by overnight courier service shall be effective only upon receipt.

                8.2  Entire Agreement. This Agreement represents the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all other prior arrangements, representations and covenants with respect thereto, whether oral or written.

                8.3  Headings. Section headings herein are for the purposes of convenience only and should not be used in construing the provisions hereof.

                8.4  Modifications. Participant and CNB may at any time hereafter modify this Agreement by-further agreement in writing signed by them.

                8.5  Covenant of Further Assurances. The parties hereto shall execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement.

                8.6  Successors and Assigns: Applicable Law.

                (a)  Except as to Participant’s right to acquire legal title to Affected Loans, as provided in Section 1.4 hereof, Participant may not assign any of its interest in the Affected Loans, or participate any portion or portions of its interest in such loans, without the prior written consent of CNB, which consent shall not be unreasonably withheld. Participant shall not delegate its obligations with regard to the administration of the Affected Loans without the prior written

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consent of CNB, which consent shall not be unreasonably withheld, except that nothing herein shall be deemed to prohibit Participant from engaging a CNB or a third party as the servicer of the Affected Loans.

                (b)  This Agreement shall be governed and construed according to the laws of the State of California (without regard to its conflict of laws rules), and shall be binding upon and inure to the benefit of Participant and CNB and their respective successors and permitted assigns; and the representations and warranties of each party herein contained shall survive the execution of this Agreement and all advances of funds hereunder. As used herein, the singular includes the plural, the plural includes the singular, and the use of any gender shall be applicable to all genders, as the context may require.

                8.7  Not a Security. Participant agrees that its Participation Interest does not, and will not be claimed by it to, constitute the purchase by it from, or the sale to it by, CNB or any other person of a “security” within the meaning of the Securities Act of 1933, as amended, or the Securities and Exchange Act of 1934, as amended, or any other similar securities act (state or federal), or regulations issued thereunder; and that under no circumstances whatsoever shall CNB be deemed to be an underwriter or seller of a security; and Participant irrevocably waives any right to claim that its participation in any Affected Loan constitutes the purchase of a security or that CNB or any other person is the seller or underwriter of a security.

                8.8  Intent of Parties. It is the intent and purpose of the parties hereto that this Agreement represents a present conveyance by CNB to Holdings and, thereafter, a present conveyance by Holdings to REIT of an undivided 100% ownership interest in each Affected Loan, all Affected Loan Documents delivered in connection therewith, and the rights, benefits and obligations arising therefrom; and this Agreement shall not be deemed to represent a mere pledge of an interest in any Affected Loan by CNB to Participant or a loan from Participant to CNB.

                8.9  Unenforceability. If any provision hereof is invalid or unenforceable, the remaining provisions shall not be affected by such invalidity or unenforceability. Each provision hereof shall, however, be valid and be enforced to the maximum extent permitted by applicable law.

                8.10 Termination. This Agreement shall have an initial term commencing on the date hereof and ending on December 31, 2003 (“Renewal Date”), and shall automatically continue from year to year after the Renewal Date without the necessity of further action by either party unless sooner terminated as provided hereinafter. Either party may terminate this Agreement on the Renewal Date or on any one year anniversary of the Renewal Date by giving the other party not less than ninety (90) days’ prior written notice of such termination; provided, however, that any such termination shall be effective only as to future loan advances, or other extensions of credit, and receipt of Security. All collections on transactions entered into prior to the date that termination is effective shall be accounted for as if the Affected Loan were in liquidation; provided, however, that CNB may enter into subsequent transactions with any Obligor and account separately therefor. If Participant shall give notice of termination, Participant shall have no interest in any Security received or otherwise coming into existence subsequent to the effective date of termination. Notwithstanding the foregoing, Participant may not, under any circumstance, terminate its participation in any Affected Loans as to which, on the date of giving notice of termination or on the effective date of termination, the Borrower is in default or any of the applicable Affected Loan Documents.

                8.11 Termination of Servicing. The Servicing Agreement may be terminated by either CNB or Participant upon providing the other with least 60 days’ advance written notice. Notice of termination may be given at any time. Such termination shall be effective as of the last day of the first (1st)

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 calendar month following the calendar month in which notice is given. The termination of servicing will be effective as follows:

                (a)  If CNB terminates the servicing portion of this Agreement, Participant will not pay CNB a termination fee;

                (b)  If Participant terminates the servicing portion of this Agreement without cause and with the intention of transferring the servicing to a third party, Participant will be entitled to the proceeds of the sale of such servicing rights and will bear the cost and expenses related to the sale and transfer of such servicing rights. In such event, Participant will not pay CNB a termination fee; and

                (c)  If Participant terminates the Servicing Agreement for cause, including, without limitation, a breach by CNB of any of its representations and warranties as provided in Article V hereof, such termination will be effective fifteen days after giving of notice unless such breach is cured within fifteen days, and no termination fee will be paid by Participant to CNB. Upon such termination, Participant will automatically resume all its rights in and responsibilities for servicing the Affected Loans. Participant will also have the right to designate any person to exercise those powers. The Affected Loan Documents will be delivered to Participant or a party that it designates. CNB will also promptly deliver to Participant any necessary assignment, transfers and documents of authority.

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