Designation of Servicer. (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 9 contracts

Samples: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PDSI is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Purchasers shall, at any ~~and all steps which are necessary~~ time following the occurrence of an Amortization Event designate as Servicer any Person to succeed PDSI or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PDSI shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PDSI. If at any time Agent shall designate as Servicer to any Person or other than PDSI, all duties and responsibilities theretofore delegated by PDSI to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PDSI and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) PDSI shall be and remain primarily liable to Agent, the ~~Servicer shall remain liable~~ Purchaser Agents and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, the Purchaser Agents and the Purchasers shall be entitled to deal exclusively with PDSI in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, the Purchaser Agents and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PDSI in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PDSI, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 5 contracts

Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PDCo is hereby designated as, and ~~hereby~~ xxxxxx agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement~~, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program~~ . Agent ~~or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver~~ (on behalf of the ~~Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments~~Purchasers) may, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the ~~Program Agent (~~Required Purchasers shall, at any time following the ~~direction~~ occurrence of ~~the Majority Managing Agents) notify the Contract Debtors with respect~~ an Amortization Event designate as Servicer any Person to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the succeed PDCo or any successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsServicer. (fa) ~~DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with~~ Without the ~~Borrower, the Program~~ prior written consent of Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PDCo shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PDCo. If at any time Agent shall designate as Servicer to any Person or other than PDCo, all duties and responsibilities theretofore delegated by PDCo to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PDCo and to Seller. (b) Notwithstanding the foregoing subsection (b), (i) PDCo shall be and remain primarily liable to Agent, the ~~Servicer shall remain liable~~ Purchaser Agents and the Purchasers and the Hedge Providers (if any) for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, the Purchaser Agents and the Purchasers shall be entitled to deal exclusively with PDCo in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, the Purchaser Agents and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PDCo in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PDCo, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 4 contracts

Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Avnet is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Purchasers shall, at any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right~~ time after the occurrence of any ~~kind in connection with~~ Amortization Event, designate as Servicer any ~~Pledged Contract~~ Person to succeed Avnet or ~~other Collateral~~any successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Avnet shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies or law firms, taking action in connection with collection activities, in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Avnet. If at any time the Agent shall designate as Servicer to any Person or other than Avnet, all duties and responsibilities theretofore delegated by Avnet to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Avnet and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Avnet shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder (unless a successor servicer has been designated by the Agent pursuant to Section 8.1 hereof) and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Avnet in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Avnet in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Avnet, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 4 contracts

Samples: Receivables Purchase Agreement (Avnet Inc), Receivables Purchase Agreement (Avnet Inc), Receivables Purchase Agreement (Avnet Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~7. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC McKesson is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ After the occurrence and during the continuance of an Amortization Event, the Collateral Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed McKesson or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Committed Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer McKesson shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller or another Affiliate of McKesson and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of the Servicer delegated to it by McKesson. If at any time after the occurrence of an Amortization Event, the Collateral Agent shall designate as Servicer any Person other than McKesson or an Affiliate of McKesson, all duties and responsibilities theretofore delegated by McKesson or another Affiliate of McKesson to Seller may, at the discretion of the Collateral Agent, be terminated forthwith on notice given by the Collateral Agent to McKesson and to Seller. (c) So long as the Servicer is McKesson or an Affiliate of McKesson, (i) McKesson shall be and remain primarily liable to the Collateral Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder; (ii) the Collateral Agent and the Purchasers shall be entitled to deal exclusively with McKesson in matters relating to the discharge by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, responsibilities hereunder; and (iii) the Collateral Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than McKesson in order for communication to the Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. McKesson, at all times that it is the Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 4 contracts

Samples: Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC ABDC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Required Purchaser Agents may at any time following the occurrence of an Amortization Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed ABDC or any successor Servicer; provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ ABDC may delegate, and ABDC hereby advises the ~~obligations~~ Administrator, each Purchaser Agent and ~~duties hereby imposed on~~ each Purchaser that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing Agents,~~ Required Purchaser Agents (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer ABDC shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the other Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by ABDC. If at any time the Required Purchaser Agents shall designate as Servicer any Person other than ABDC, all duties and responsibilities theretofore delegated by ABDC to Seller or the other Originators may, at the discretion of the Required Purchaser Agents, be terminated forthwith on notice given by the Required Purchaser Agents to ABDC and to Seller and the other Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) ABDC shall be and remain primarily liable to the Administrator, each Purchaser Agent and each Purchaser for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrator, each Purchaser Agent and each Purchaser shall be entitled to deal exclusively with ABDC in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrator, each Purchaser Agent and each Purchaser shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than ABDC in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. ABDC, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Amerisourcebergen Corp), Receivables Purchase Agreement (Amerisourcebergen Corp), Receivables Purchase Agreement (Amerisourcebergen Corp)

Designation of Servicer. (ai) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~7. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC McKesson is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement~~, whether with respect to~~ . After the ~~Pledged Contracts~~occurrence and during the continuance of an Amortization Event, the ~~other~~ Collateral Agent may at any time designate as Servicer any Person to succeed McKesson or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (dj) In Without the ~~event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Committed Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer McKesson shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller or another Affiliate of McKesson and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of the Servicer delegated to it by McKesson. If at any time after the occurrence of an Amortization Event, the Collateral Agent shall designate as Servicer any Person other than McKesson or an Affiliate of McKesson, all duties and responsibilities theretofore delegated by McKesson or another Affiliate of McKesson to Seller may, at the discretion of the Collateral Agent, be terminated forthwith on notice given by the Collateral Agent to McKesson and to Seller. (k) So long as the Servicer is McKesson or an Affiliate of McKesson, (i) McKesson shall be and remain primarily liable to the Collateral Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder; (ii) the Collateral Agent and the Purchasers shall be entitled to deal exclusively with McKesson in matters relating to the discharge by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, responsibilities hereunder; and (iii) the Collateral Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than McKesson in order for communication to the Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. McKesson, at all times that it is the Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Xxxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ Following the occurrence and during the continuance of a Servicer Default, the Administrative Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Xxxxxxx or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Administrative Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Xxxxxxx shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except with respect to certain Charged-Off Contracts, to~~ outside collection agencies in accordance with its ~~customary practices~~Credit and Collection Policy. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Xxxxxxx. The Administrative Agent may, at any time following the occurrence and during the continuance of a Servicer Default, designate as Servicer to any Person ~~or the appointment~~ other than Xxxxxxx, whereupon all duties and responsibilities of ~~any Approved Sub~~Xxxxxxx as Servicer hereunder shall cease and all duties and responsibilities theretofore delegated by Xxxxxxx to Seller as sub-servicer ~~pursuant~~ may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to ~~this Section 6.01(g~~Xxxxxxx and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Xxxxxxx shall be and remain primarily liable to the Administrative Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Xxxxxxx in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Administrative Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Xxxxxxx in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Xxxxxxx, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Beckman Coulter Inc), Receivables Purchase Agreement (Beckman Coulter Inc), Receivables Purchase Agreement (Beckman Coulter Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC MPC LP is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer~~ Administrative Agent may, at any time after the occurrence and during the continuance of an ~~irrevocable power of attorney~~Amortization Event, ~~with full power of substitution, coupled with an interest, to take in~~ at the ~~name~~ direction of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Required Managing Agents, ~~by notice in writing to the~~ designate as Servicer (~~a copy of which shall also be delivered~~ i) any Person to ~~the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions~~ succeed MPC LP or (ii) any successor to such ~~termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the~~ Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the that replaced ~~Servicer upon presentation of reasonable documentation of such costs and expenses~~MPC LP; provided, however, that ~~if the replaced Servicer fails to pay~~ in either case, no such ~~costs and expenses promptly, the successor Servicer~~ Person shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicera Marathon Competitor. (di) In Without the ~~event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the ~~Majority~~ Administrative Agent and the Required Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer MPC LP shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xA) ~~an Approved Sub-servicer~~ Seller; (B) one or more Affiliates of MPC LP, upon written notice to the Administrative Agent and the Managing Agents; and (yC) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller of any such Affiliate shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer so delegated to it by MPC LP. (ii) If at any time the Administrative Agent shall designate as Servicer to any Person other than MPC LP, all duties and responsibilities theretofore delegated by MPC LP to Seller or any such Affiliate may, at the ~~appointment~~ discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to MPC LP and to Seller or such Affiliate, as applicable. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation of MPC LP’s duties as Servicer pursuant to ~~this Section 6.01(g~~the foregoing subsection (b)(i), (i) MPC LP shall be and remain primarily liable to the ~~Servicer shall remain liable~~ Administrative Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall be entitled to deal exclusively with MPC LP in matters relating to the discharge by Servicer of its duties and ~~obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program~~ responsibilities hereunder. The Administrative Agent and ~~each Managing Agent~~the Purchasers shall not be required to give notice, demand or other communication to ~~perform the servicing functions described herein~~any Person other than MPC LP in order for communication to Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. MPC LP, ~~and (iii)~~ at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Marathon Petroleum Corp), Receivables Purchase Agreement (Marathon Petroleum Corp), Receivables Purchase Agreement (Marathon Petroleum Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PVSI is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Purchasers shall, at any ~~and all steps which are necessary~~ time following the occurrence of an Amortization Event designate as Servicer any Person to succeed PVSI or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PVSI shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PVSI. If at any time Agent shall designate as Servicer to any Person or other than PVSI, all duties and responsibilities theretofore delegated by PVSI to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PVSI and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) PVSI shall be and remain primarily liable to Agent, the ~~Servicer shall remain liable~~ Purchaser Agents and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, the Purchaser Agents and the Purchasers shall be entitled to deal exclusively with PVSI in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, the Purchaser Agents and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PVSI in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PVSI, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this ~~Section 6.01~~Section. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Lender gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the ~~Program Agent~~Lender. (c) If a Servicer Default has occurred and is continuing the ~~Program Agent shall, if requested by the Majority Managing Agents~~Lender may, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the ~~Program Agent~~ Lender or its designee pursuant to and under this Section 6.01(c); and, without limitation, the ~~Program Agent~~ Lender is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the ~~Program Agent~~ Lender in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the ~~Program Agent~~ Lender or its designee on behalf of the ~~Lenders~~ Lender for administration by it of all Contract Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the ~~successor~~ Backup Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the ~~successor~~ Backup Servicer, to reflect such succession as the Servicer pursuant to this ~~Section 6.01~~Section, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the ~~successor~~ Backup Servicer shall be entitled to recover such amounts in accordance with Section ~~2.06~~ 2.07 or ~~2.07~~2.08, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the ~~Program Agent, with the consent of the Majority Managing Agents,~~ Lender shall appoint the Backup Servicer as successor Servicer, and the ~~successor~~ Backup Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this AgreementLender. Upon appointment, the ~~successor~~ Backup Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the ~~successor~~ Backup Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the ~~successor~~ Backup Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a ~~successor~~ Backup Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as ~~successor~~ Backup Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it The Lender and such ~~successor Servicer shall agree. The Program Agent and such successor~~ Backup Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the Backup Servicer as successor Servicer may, at the direction of the ~~Program Agent (at the direction of the Majority Managing Agents)~~ Lender, notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the ~~successor~~ Backup Servicer (or to the ~~Program Agent~~ Lender or such other Person or account as the ~~Program Agent~~ Lender shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the ~~successor~~ Backup Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the ~~successor~~ Backup Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the ~~successor~~ Backup Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the ~~Program Agent~~ Lender and the ~~successor~~ Backup Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the ~~successor~~ Backup Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the ~~successor~~ Backup Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the ~~successor~~ Backup Servicer all Records held by or under the control of such Servicer and (iv) permitting the ~~successor~~ Backup Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the ~~successor~~ Backup Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such ~~successor~~ Backup Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of ~~each Managing Agent~~the Lender, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the ~~Program Agent and each Managing Agent~~Lender, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the ~~Lenders,~~ Lender or the ~~Program Agent, the Managing Agents and the Liquidity Providers~~ Lender shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer. (h) Notwithstanding anything to the contrary contained herein, neither Lender nor Backup Servicer shall appoint or otherwise transfer servicing functions described herein to any Person other than the Backup Servicer without the prior written consent of Borrower and DT Credit Company, LLC (or any successor in interest).

Appears in 3 contracts

Samples: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Xxxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Financial Institutions shall, at any time following the occurrence of a Collection Notice Event, by notice to Xxxxxxx and ~~all steps which are necessary~~ Seller designate any Person to succeed Xxxxxxx as Servicer or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer shall~~ Xxxxxxx will not ~~be permitted to~~ delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Cardinal, (iii) Cardinal Health 2, Inc. a Nevada corporation, (iv) Cardinal Health 7, LLC and (yv) ~~except~~ with respect to certain Receivables that are Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary ~~practices~~practices (each, a “Permitted Sub-Servicer”). ~~Notwithstanding the delegation by the~~ No Permitted Sub-Servicer of will further delegate to any other Person, other than another Permitted Sub-Servicer, any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Xxxxxxx. If the Agent shall, in accordance with this Agreement, designate as Servicer to any Person ~~or the appointment of any Approved~~ other than Xxxxxxx, all duties and responsibilities theretofore delegated by Xxxxxxx to each Permitted Sub-~~servicer pursuant~~ Servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Xxxxxxx and to Seller (and, at the Agent’s discretion, any Permitted Sub-Servicer). (c) Notwithstanding the foregoing subsection (b), (i) Xxxxxxx shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Xxxxxxx in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to (but may at their sole option) give notice, demand or other communication to any Person other than Xxxxxxx in order for communication to the ~~terms hereof~~Servicer and any of its Permitted Sub-Servicers with respect thereto to be accomplished. Xxxxxxx, ~~(ii)~~ at all times that it is the Servicer, shall be responsible for providing any Permitted Sub-Servicer or other delegate of the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) with any ~~sub-servicing agreement that may be entered into and any other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Cardinal Health Inc), Receivables Purchase Agreement (Cardinal Health Inc), Receivables Purchase Agreement (Cardinal Health Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the ~~Program~~ Administrative Agent, with the consent or at the direction of the ~~Managing~~ Facility Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ NRG Retail LLC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Pool Receivable or other Collateral. (b) Upon the occurrence of any Event of Termination that has not been waived in writing, the Administrative Agent (i) shall at the request of the Majority Facility Agents or, at any time during which there are only two Facility Agents, at the request of either Facility Agent, or (ii) may with the consent of the Majority Facility Agents, (A) by written notice to the parties hereto designate as Servicer any Person to succeed NRG Retail LLC (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof and such replacement servicer shall have all required licenses and shall conduct its servicing at all times so as to not cause Borrower or any of its Affiliates to violate any applicable Law and (B) instruct the Borrower or the Servicer to give notice of the Administrative Agent’s interest in the Pool Receivables to each Obligor, which notice shall direct that payments be made directly to the Administrative Agent or its designee (for the benefit of each Secured Party), and the Borrower or the Servicer, as the case may be, shall give such notice at the expense of the Borrower or the Servicer, as the case may be; provided, that if the Borrower or the Servicer, as the case may be, fails to so notify each Obligor within 30 days after receipt of such instruction, the Administrative Agent (at the Borrower’s or the Servicer’s, as the case may be, expense) may so notify the Obligors. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC NRG Retail LLC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) ~~or (c)~~ above, it will cooperate with the Borrower, the ~~Program~~ Administrative Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, using commercially reasonable efforts in (i) assisting the successor Servicer in enforcing all of Borrower’s rights under the ~~Pledged Contracts~~ Pool Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor ~~Servicer~~Servicer or to the Borrower, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Pool Receivables received by such Servicer, (iii) transferring to the successor Servicer all ~~Records~~ books and records including the Contracts (or copies of books and records and Contracts) held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Pool Receivables and the ~~Records~~ books and records (including the Contracts) and taking all commercially reasonable actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ NRG Retail LLC as Servicer, ~~DTCC~~ NRG Retail LLC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) ~~Without the consent of each Managing Agent, the~~ The Servicer ~~shall not be permitted to~~ may delegate ~~any of~~ its duties ~~or responsibilities as Servicer~~ and obligations hereunder to any ~~Person other than~~ sub-servicer (~~x) an Approved~~ each a “Sub-~~servicer and (y) except with respect to certain Charged-Off Contracts~~Servicer”); provided, ~~to outside collection agencies~~ that, in ~~accordance with its customary practices. Notwithstanding the~~ each such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g),~~ (i) the Servicer shall remain primarily liable for the ~~timely and complete~~ performance of ~~its~~ the duties and obligations ~~pursuant to the terms hereof,~~ so delegated; (ii) the ~~Servicer shall retain management information systems and sufficient servicing capability~~Borrower, in the ~~reasonable judgment of the Program~~ Administrative Agent and each ~~Managing Agent,~~ Lender Group shall have the right to ~~perform~~ look solely to the ~~servicing functions described herein, and~~ Servicer for performance; (iii) unless such Sub-Servicer is a Utility that is providing invoicing services to an Originator, the terms of any ~~sub~~agreement with any Sub-~~servicing~~ Servicer shall provide that such agreement ~~that may be entered into and any other transactions or services relating~~ shall terminate upon the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer~~ Servicer (and the Servicer ~~alone~~shall provide appropriate notice to each such Sub-Servicer) and (iv) unless such Sub-Servicer is an Originator, ~~and none~~ another Affiliate of the ~~Lenders~~Servicer or a Utility that is providing invoicing services to an Originator, the ~~Program Agent~~Administrative Agent shall have consented in writing in advance to such delegation. For the avoidance of doubt, this Section 6.01(d) shall not apply to any Payment Processor, any third party collection agency collecting Defaulted Receivables or any other third party service provider assisting in the servicing of the Defaulted Receivables. None of the Borrower, the ~~Managing Agents~~ Administrative Agent and the ~~Liquidity Providers shall be deemed parties thereto or~~ members of the Lender Groups shall have any obligations, duties or liabilities with respect to any ~~Approved~~ Sub-~~servicer~~Servicer, Payment Processor, any third party collection agency collecting Defaulted Receivables or any other third party service provider assisting in the servicing of the Defaulted Receivables.

Appears in 3 contracts

Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PDCo is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement~~, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program~~ . Agent ~~or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver~~ (on behalf of the ~~Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments~~Purchasers) may, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the ~~Program Agent (~~Required Purchasers shall, at any time following the ~~direction~~ occurrence of ~~the Majority Managing Agents) notify the Contract Debtors with respect~~ an Amortization Event designate as Servicer any Person to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the succeed PDCo or any successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsServicer. (fa) ~~DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with~~ Without the ~~Borrower, the Program~~ prior written consent of Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PDCo shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PDCo. If at any time Agent shall designate as Servicer to any Person or other than PDCo, all duties and responsibilities theretofore delegated by PDCo to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PDCo and to Seller. (b) Notwithstanding the foregoing subsection (b), (i) PDCo shall be and remain primarily liable to Agent, the ~~Servicer shall remain liable~~ Purchaser Agents and the Purchasers and the Hedge Providers (if any) for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, the Purchaser Agents and the Purchasers shall be entitled to deal exclusively with PDCo in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, the Purchaser Agents and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PDCo in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PDCo, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. ~~(a)~~ The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the ~~Person~~ Servicer so designated hereunder from time to ~~time in accordance with this Section 6.01~~time. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Agent gives notice to the ~~Borrower and the Servicer~~ Seller of the designation of a new Servicer ~~as provided~~ in ~~Section 6.01(c) below~~accordance with the provisions of the next sentence, ~~DTCC~~ ACSC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The ~~Borrower hereby grants~~ Agent may, at any time after the occurrence and during the continuance of a Servicer Default, designate as Servicer any Person (including itself) to ~~Servicer an irrevocable power of attorney~~succeed ACSC or any successor Servicer, ~~with full power of substitution, coupled with an interest, to take in the name of the Borrower any~~ if such Person shall consent and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered agree to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Noticeterms hereof. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the prior consent of the ~~Majority Managing Agents~~Agent, ~~make such arrangements~~ subcontract with any other Person for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, ~~custody~~ administration or collection of the ~~Pledged Contracts and the successor Servicer shall have all of~~ Pool Receivables. Any such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer subcontract shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s ~~access to and use of such information and acting as data processing agent~~ liability for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, and any such subcontract shall automatically terminate upon designation of a successor Servicer. The Servicer hereby appoints ACI as subservicer (ACI, in such capacity, the “Subservicer”) to perform the servicing, administration and collections functions of the Servicer hereunder and with respect to the other Transaction Documents; provided that the foregoing designation of ACI as subservicer does not (i) extend to the amendment or modification of a Receivable in accordance with Section 6.02(c) or (ii) contravene or otherwise exceed or violate Section 6.09. In no instance will the ~~Servicer shall retain management information systems~~ servicing and ~~sufficient servicing capability~~subservicing hereunder be inconsistent with, or in violation of, the ~~reasonable judgment~~ terms and conditions of the ~~Program~~ Insurance Policy (and ACI shall continue its servicing and administration of the Insurance Policy). The Agent ~~and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating~~ hereby consents to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none~~ designation of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerACI as subservicer hereunder.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (AbitibiBowater Inc.), Receivables Purchase Agreement (AbitibiBowater Inc.), Receivables Purchase Agreement (AbitibiBowater Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC ABDC is hereby designated as, and ~~hereby~~ hxxxxx agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Required Purchaser Agents may at any time following the occurrence of an Amortization Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed ABDC or any successor Servicer; provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ ABDC may delegate, and ABDC hereby advises the ~~obligations~~ Administrator, each Purchaser Agent and ~~duties hereby imposed on~~ each Purchaser that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing Agents,~~ Required Purchaser Agents (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer ABDC shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the other Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by ABDC. If at any time the Required Purchaser Agents shall designate as Servicer any Person other than ABDC, all duties and responsibilities theretofore delegated by ABDC to Seller or the other Originators may, at the discretion of the Required Purchaser Agents, be terminated forthwith on notice given by the Required Purchaser Agents to ABDC and to Seller and the other Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) ABDC shall be and remain primarily liable to the Administrator, each Purchaser Agent and each Purchaser for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrator, each Purchaser Agent and each Purchaser shall be entitled to deal exclusively with ABDC in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrator, each Purchaser Agent and each Purchaser shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than ABDC in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to be accomplished. ABDC, at all times that it is the Servicer, shall be responsible for providing any sub-servicer or other delegate of the Servicer with any notice given to the Servicer under this ~~Section 6.01(g)~~Agreement. (d) Notwithstanding anything to the contrary herein or in any other Transaction Document, (i) the ~~Servicer~~ Excluded Obligor Receivables shall ~~remain liable~~ be excluded from the calculations of (x) “Adjusted Dilution Ratio,” “Credit Memo Lag Time,” “Days Sales Outstanding,” “Default Horizon Ratio,” “Default Ratio,” “Delinquency Ratio,” “Dilution Horizon Ratio,” “Dilution Ratio,” “Dilution Reserve,” “Dilution Volatility Component,” “Loss Reserve,” “Net Pool Balance,” “Rebate Reserve,” “Required Reserve,” “Required Reserve Factor Floor,” “Servicing Fee,” “Servicing Reserve” and “Yield Reserve,” (y) any components of the calculations and terms described in clause (x) above and (z) each other item required to be reported on for purposes of any Settlement Report and Interim Settlement Report (other than the ~~timely~~ Outstanding Balance thereof as set forth in any such Settlement Report and ~~complete performance~~ Interim Settlement Report), in each case, for all purposes of ~~its duties~~ this Agreement, any Settlement Report, any Interim Settlement Report and ~~obligations pursuant to~~ the ~~terms hereof,~~ other Transaction Documents and (ii) the ~~Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ Excluded Obligor Included Receivables constitute a portion of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer Purchased Assets for all purposes of this Agreement and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerother Transaction Documents.

Appears in 3 contracts

Samples: Receivables Purchase Agreement (Amerisourcebergen Corp), Receivables Purchase Agreement (Cencora, Inc.), Receivables Purchase Agreement (Amerisourcebergen Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PDCo is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Purchasers shall, at any ~~and all steps which are necessary~~ time following the occurrence of an Amortization Event designate as Servicer any Person to succeed PDCo or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PDCo shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PDCo. If at any time Agent shall designate as Servicer to any Person or other than PDCo, all duties and responsibilities theretofore delegated by PDCo to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PDCo and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) PDCo shall be and remain primarily liable to Agent and the ~~Servicer shall remain liable~~ Purchasers and the Hedge Providers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, and the Purchasers shall be entitled to deal exclusively with PDCo in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PDCo in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PDCo, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 3 contracts

Samples: Contract Purchase Agreement (Patterson Companies, Inc.), Contract Purchase Agreement (Patterson Companies, Inc.), Contract Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Consumers is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Administrative Agent may, ~~with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it~~ and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer mayshall, at the direction of the ~~Program Agent (~~Required Financial Institutions, at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account any time designate as the ~~Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced~~ Servicer ~~shall have no future obligations with respect~~ any Person to ~~the management, administration, servicing, custody~~ succeed Consumers or ~~collection of the Pledged Contracts and the~~ any successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsServicer. (fb) ~~DTCC and any other Servicer agrees that~~Without the prior written consent of the Administrative Agent, ~~upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program~~ each Managing Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Consumers shall not be permitted to delegate any of its duties or responsibilities as the Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Seller and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~delinquent Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ The Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Consumers. If at any time the Administrative Agent shall designate as the Servicer to any Person or other than Consumers, all duties and responsibilities theretofore delegated by Consumers to the ~~appointment~~ Seller may, at the discretion of the Administrative Agent and shall, at the direction of the Required Financial Institutions, be terminated forthwith on notice given by the Administrative Agent to Consumers and to the Seller. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation by Consumers pursuant to ~~this Section 6.01(g~~the foregoing subsection (b), (i) ~~the Servicer~~ Consumers shall be and remain primarily liable ~~for the timely and complete performance of its duties and obligations pursuant~~ to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Administrative Agent, the Managing Agents and the ~~Liquidity Providers shall be deemed parties thereto or shall have any obligations~~Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrative Agent, ~~duties or liabilities with respect to any Approved Sub-servicer.~~the Managing

Appears in 2 contracts

Samples: Intercreditor Agreement (Consumers Energy Co), Intercreditor Agreement (Consumers Energy Co)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent and the Required Financial Institutions may, at any time following an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Seller may delegate, and Seller hereby advises the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation Purchasers, each of the ~~Servicer shall be evidenced by an opinion of counsel~~ Managing Agents and the Agent that it has delegated, to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power each of the ~~Servicer under this Agreement~~Originators, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-Servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to further delegate any of its duties or responsibilities as Servicer to any Person other ~~than (x) an Approved Sub-servicer and (y) except~~ than, with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ If at any time the ~~delegation by~~ Agent and the ~~Servicer of any of its duties or responsibilities~~ Required Financial Institutions shall designate as Servicer to any Person or Persons other than Seller, all duties and responsibilities theretofore delegated by Seller to any sub-Servicer (whether an Originator or any other Person) may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent and the Required Financial Institutions, be terminated forthwith on notice given by the Agent and the Required Financial Institutions to ~~this Section 6.01(g~~Seller. (c) Notwithstanding the foregoing subsection (b), (i) Seller shall be and remain primarily liable to the Managing Agents, the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Managing Agents, the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Seller in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Managing Agents, the Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Seller in order for communication to the ~~terms hereof~~Servicer and its sub-Servicers or other delegates with respect thereto to be accomplished. Seller, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ Servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Johnsondiversey Inc), Receivables Purchase Agreement (Johnsondiversey Holdings Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Spherion is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Administrative Agent may at any time after an Unmatured Amortization Event or an Amortization Event designate as Servicer any Person to succeed Spherion or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ PROVIDED THAT the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ Spherion may delegate, and Spherion hereby advises the ~~obligations~~ Lenders and ~~duties hereby imposed on~~ the Administrative Agent that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of Spherion duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Administrative Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Liquidity Banks, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Spherion shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Borrower, (ii) the other Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Borrower nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Spherion. If at any time the Administrative Agent shall designate as Servicer any Person other than Spherion, all duties and responsibilities theretofore delegated by Spherion to Borrower or the other Originators may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to Spherion and to Borrower and the other Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) Spherion shall be and remain primarily liable to the Administrative Agent and the Lenders for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrative Agent and the Lenders shall be entitled to deal exclusively with Spherion in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrative Agent and the Lenders shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Spherion for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Spherion, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Credit and Security Agreement (Spherion Corp), Credit and Security Agreement (Spherion Corp)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the ~~Program~~ Administrative Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ Xxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Receivable or other Collateral. (b) Upon the occurrence and during the continuation of any Servicer Default, the Administrative Agent may, with the consent or shall at the direction of the Required Managing Agents, upon written notice to the parties hereto designate as Servicer any Person to succeed Xxxxxx (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform, and be qualified to perform, the duties and obligations of the Servicer pursuant to the terms hereof and each of the other Facility Documents to which the Servicer is a party. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC Xxxxxx and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) ~~or (c)~~ above, it will cooperate with the Borrower, the ~~Program~~ Administrative Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Receivables received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Receivables and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ Xxxxxx as Servicer, ~~DTCC~~ Xxxxxx shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an Approved Sub-servicer and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. . (e) Notwithstanding ~~the~~ any such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer~~ pursuant to ~~this Section 6.01(g)~~clause (d) above, (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the ~~Program~~ Administrative Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the ~~Pledged Contracts~~ Receivables involving an Approved Sub-servicer shall be deemed to be between such ~~sub~~Approved Sub-servicer and the Servicer alone, and none of the Lenders, the ~~Program~~ Issuing Lenders, the Administrative Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 2 contracts

Samples: Loan and Servicing Agreement (Newell Brands Inc.), Loan and Servicing Agreement (Newell Brands Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~11.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Company is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement and the Sale Agreement. ~~The Borrower hereby grants~~ Following the occurrence and during the continuance of a Servicer Event of Default, the Administrative Agent may designate as Servicer any Person to succeed the Company or any successor Servicer. In addition, the Servicer ~~an irrevocable power of attorney,~~ may be replaced with ~~full power of substitution, coupled with an interest, to take in~~ the ~~name~~ consent of the ~~Borrower any~~ Borrower, the Supermajority Term A Lenders and ~~all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind~~ the Supermajority Term B Lenders in ~~connection~~ accordance with ~~any Pledged Contract or other Collateral~~Section 9.02(b). (b) The Company is permitted to delegate, and the Company hereby advises the Lenders and the Administrative Agent that it has delegated, to each of the Originators, as subservicers of the Servicer, certain of its duties and responsibilities as Servicer hereunder in respect of the Transferred Receivables. Notwithstanding the foregoing, (i) for so long as the Company is Servicer, the Company shall ~~not resign from~~ be and remains primarily liable to the ~~obligations~~ Administrative Agent and the Lenders for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) for so long as the Company is Servicer, the Administrative Agent and the Lenders shall be entitled to deal exclusively with the Company in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Administrative Agent and the Lenders shall not be required to give notice, demand or other communication to any Person other than the Company in order for communication to the Servicer ~~could take~~ and its subservicer or other delegate in respect thereof to ~~make~~ be accomplished. The Company, at all times that it is the ~~performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ Servicer, shall be ~~evidenced by an opinion of counsel to such effect delivered to the Program Agent~~responsible for providing its subservicer or other delegate with any notice given under this Agreement. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program~~ Administrative Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Company shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x) an Approved Sub-servicer~~ each Originator, and then such delegation shall be limited to the activities of Servicer hereunder as the same may relate to the Receivables originated by such Originator, and (yii) ~~except with respect~~ no Originator shall be permitted to ~~certain Charged-Off Contracts,~~ further delegate to ~~outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by the Company. If following the occurrence and during the continuance of an Servicer Event of Default, the Administrative Agent shall designate as Servicer to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~Company, ~~(i) the Servicer shall remain liable for the timely and complete performance of its~~ all duties and ~~obligations pursuant~~ responsibilities theretofore delegated by the Company to the ~~terms hereof~~Originators may, ~~(ii)~~ at the ~~Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ discretion of the ~~Program Agent and each Managing~~ Administrative Agent, ~~to perform~~ be terminated forthwith on written notice given by the ~~servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating~~ Administrative Agent to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerCompany.

Appears in 2 contracts

Samples: Credit Agreement (YRC Worldwide Inc.), Credit Agreement (YRC Worldwide Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables on behalf of Agent and the Purchasers shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PDCo is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer for Agent and the ~~Servicer~~ Purchasers pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement~~, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program~~ . Agent ~~or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver~~ (on behalf of the ~~Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments~~Purchasers) may, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the ~~Program Agent (~~Required Purchasers shall, at any time 737768156 10446458 following the ~~direction~~ occurrence of ~~the Majority Managing Agents) notify the Contract Debtors with respect~~ an Amortization Event designate as Servicer any Person to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the succeed PDCo or any successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsServicer. (fa) ~~DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with~~ Without the ~~Borrower, the Program~~ prior written consent of Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PDCo shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Seller and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and lawyers in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller or any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer delegated to it by PDCo. If at any time Agent shall designate as Servicer to any Person or other than PDCo, all duties and responsibilities theretofore delegated by PDCo to Seller and any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ Agent, be terminated forthwith on notice given by Agent to ~~this Section 6.01(g~~PDCo and to Seller. (b) Notwithstanding the foregoing subsection (b), (i) PDCo shall be and remain primarily liable to Agent, the ~~Servicer shall remain liable~~ Purchaser Agents and the Purchasers and the Hedge Providers (if any) for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) Agent, the Purchaser Agents and the Purchasers shall be entitled to deal exclusively with PDCo in matters relating to the discharge by Servicer of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing responsibilities hereunder. Agent, the Purchaser Agents and the Purchasers shall not be required to ~~perform the servicing functions described herein~~give notice, demand or other communication to any Person other than PDCo in order for communication to Servicer and ~~(iii)~~ its sub-servicer or other delegate with respect thereto to be accomplished. PDCo, at all times that it is Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Patterson Companies, Inc.), Receivables Purchase Agreement (Patterson Companies, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~6. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Co-Agents may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed the ~~name of the Borrower~~ Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Agents that it has delegated, to each of the Originators, as subservicers of the Servicer, certain of its duties and responsibilities as Servicer hereunder in respect of the Receivables transferred by such Originator to the Seller. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Agents and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Agents and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Agents and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its subservicer or other delegate in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ Servicer, shall be ~~evidenced by an opinion of counsel to such effect delivered to the Program Agent~~responsible for providing its subservicer or other delegate with any notice given under this Agreement. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the ~~Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy~~ prior written consent of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power both of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorneyCo-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x) an Approved Sub-servicer~~ each Originator, and then such delegation shall be limited to the activities of Servicer hereunder as the same may relate to the Receivables originated by such Originator, and (yii) ~~except with respect~~ no Originator shall be permitted to ~~certain Charged-Off Contracts,~~ further delegate to ~~outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by the Seller. If at any time the Co-Agents shall designate as Servicer to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~Seller, ~~(i) the Servicer shall remain liable for the timely and complete performance of its~~ all duties and ~~obligations pursuant~~ responsibilities theretofore delegated by the Seller to the ~~terms hereof~~Originators may, ~~(ii)~~ at the ~~Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ discretion of the ~~Program Agent and each Managing Agent~~Co-Agents, ~~to perform~~ be terminated forthwith on notice given by the ~~servicing functions described herein, and (iii) any sub~~Co-~~servicing agreement that may be entered into and any other transactions or services relating~~ Agents to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerSeller.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Yellow Roadway Corp), Receivables Purchase Agreement (Yellow Roadway Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated as Servicer hereunder ("Servicer") from time to time in accordance with this Section ~~6.01~~8.1. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Administrative Agent gives ~~notice~~ to ~~the Borrower and the Servicer of the designation of~~ BSX a ~~new Servicer~~ Successor Notice (as ~~provided~~ defined in Section ~~6.01(c) below~~8.1(b)), ~~DTCC~~ BSX is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) ~~The Servicer shall not resign~~ Upon BSX's receipt of a notice from the ~~obligations and duties hereby imposed on~~ Administrative Agent of the Administrative Agent's designation of a new Servicer pursuant to the terms hereof (a "Successor Notice"), BSX agrees that it ~~except upon~~ shall terminate its activities as Servicer hereunder in a manner that the ~~reasonable determination by~~ Administrative Agent reasonably believes will facilitate the ~~Servicer that (x)~~ transition of the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such ~~effect delivered~~ activities to the ~~Program Agent~~new Servicer, and the Administrative Agent (or its designee) shall assume each and all of BSX's obligations to service and administer such Receivables, on the terms and subject to the conditions herein set forth, and BSX shall use its best efforts to assist the Administrative Agent (or its designee) in assuming such obligations. The Administrative Agent agrees not to give BSX a Successor Notice until after the occurrence of an Amortization Event. (c) ~~If a Servicer Default has occurred and is continuing the Program Agent shall~~BSX may delegate to each other Originator, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing~~ Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer BSX shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Borrower, (ii) any other Originator, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Borrower nor any other Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by BSX. If at any time the Administrative Agent shall designate as Servicer any Person other than BSX, all duties and responsibilities theretofore delegated by BSX to Borrower or any other Originator may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to BSX and to Borrower and the applicable Originator. (d) Notwithstanding delegation under the ~~delegation~~ foregoing subsection (c): (i) BSX shall be and remain primarily liable to the Agents and the Lenders for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Lenders shall be entitled to deal exclusively with BSX in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agents and the Lenders shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than BSX in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. BSX, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Credit and Security Agreement (Boston Scientific Corp), Credit and Security Agreement (Boston Scientific Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Convergys is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ At any time after the occurrence of an Amortization Event, the Agents and the Purchasers may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Convergys or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Convergys may delegate, and Convergys hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agents that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originators. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of ~~the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer,~~ Xxxxx Fargo and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Gotham Group Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the Originators, and (yiii) ~~except~~ with respect to certain ~~Charged~~charged-~~Off Contracts~~off Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of Servicer delegated to it by Convergys. If at any time following the occurrence of an Amortization Event, Xxxxx Fargo and the Gotham Group Agent shall designate as Servicer any Person other than Convergys, all duties and responsibilities theretofore delegated by Convergys to Seller or any Originator may, at the discretion of any of ~~its duties~~ the Agents, be terminated forthwith on notice given by any Agent or ~~responsibilities~~ Xxxxx Fargo to the other Agent or Xxxxx Fargo, as ~~Servicer~~ applicable, Convergys and to ~~any Person or~~ Seller. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) Servicer shall be and remain primarily liable to the Agents and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Servicer in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agents and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Servicer in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Servicer, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Convergys Corp), Receivables Purchase Agreement (Convergys Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Consumers is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Administrative Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Consumers or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Administrative Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Consumers shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~delinquent Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Consumers. If at any time the Administrative Agent shall designate as Servicer to any Person or other than Consumers, all duties and responsibilities theretofore delegated by Consumers to Seller may, at the ~~appointment~~ discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to Consumers and to Seller. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation by Consumers pursuant to ~~this Section 6.01(g~~the foregoing subsection (b), (i) Consumers shall be and remain primarily liable to the Administrative Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Consumers in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Administrative Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Consumers in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Consumers, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (CMS Energy Corp), Receivables Purchase Agreement (CMS Energy Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~6. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time in its sole discretion terminate the Seller as Servicer on notice given by the Agent to the Seller and may designate as Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest,~~ any Person to ~~take in~~ succeed the ~~name of the Borrower~~ Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Agent that it has delegated, to the Transferor as subservicer of the Servicer, certain of its duties and responsibilities as Servicer hereunder. The Seller hereby further advises the Purchasers and the Agent that the Transferor has delegated, to the Originators as subservicers of the Transferor, its duties and responsibilities as subservicer. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Agent and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its respective delegates and subservicers in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance~~ Servicer, shall be responsible for providing its delegates and subservicers with any notice given under this Agreement. The Agent may at any time in its sole discretion direct the Seller to replace any of its ~~duties hereunder permissible under applicable law. Any determination permitting~~ delegates or subservicers on notice given by the ~~resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered~~ Agent to the ~~Program Agent~~Seller and may designate as subservicer any Person to succeed such subservicer or any successor subservicer. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitationRequired Investors, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Transferor, and then such delegation shall be limited to the activities of Servicer hereunder, (xii) ~~an Approved Sub-servicer and (y) except with respect~~ the Transferor shall not be permitted to ~~certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ delegate any of its duties or responsibilities as of the Servicer delegated to it by the Seller to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely~~ Originators and ~~complete performance of its duties and obligations pursuant to the terms hereof,~~ (ii) the ~~Servicer~~ Originators shall ~~retain management information systems and sufficient servicing capability, in the reasonable judgment~~ not be permitted to further delegate to any other Person any of its duties or responsibilities of the ~~Program~~ Servicer delegated to it by the Transferor. If the Agent shall designate as Servicer any Person other than the Seller in accordance with this Section 6.1, all duties and ~~each Managing~~ responsibilities theretofore delegated by the Seller to the Transferor and by the Transferor to any Originator may, at the discretion of the Agent, ~~to perform~~ be terminated forthwith on notice given by the ~~servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating~~ Agent to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerSeller.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Metals Usa Inc), Receivables Purchase Agreement (Metals Usa Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~7.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC McKesson is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ After the occurrence and during the continuance of an Amortization Event, the Collateral Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed McKesson or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Committed Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer McKesson shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller or another Affiliate of McKesson and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of the Servicer delegated to it by McKesson. If at any time after the occurrence of an Amortization Event, the Collateral Agent shall designate as Servicer any Person other than McKesson or an Affiliate of McKesson, all duties and responsibilities theretofore delegated by McKesson or another Affiliate of McKesson to Seller may, at the discretion of the Collateral Agent, be terminated forthwith on notice given by the Collateral Agent to McKesson and to Seller. (c) So long as the Servicer is McKesson or an Affiliate of McKesson, (i) McKesson shall be and remain primarily liable to the Collateral Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder; (ii) the Collateral Agent and the Purchasers shall be entitled to deal exclusively with McKesson in matters relating to the discharge by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, responsibilities hereunder; and (iii) the Collateral Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than McKesson in order for communication to the Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. McKesson, at all times that it is the Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (McKesson Corp), Receivables Purchase Agreement (McKesson Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Purchased Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC ABF is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, upon the occurrence of an Unmatured Servicer Termination Event (other than one arising as a result of a Voluntary Termination, unless another Unmatured Servicer Termination Event occurs), designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed ABF or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ ABF shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Borrower, (ii) the Originator, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither the Borrower nor the Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by ABF. If at any time the Agent shall designate as Servicer any Person other than ABF, all duties and responsibilities theretofore delegated by ABF to the Borrower or the Originator may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ABF and to the Borrower and the Originator. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) ABF shall be and remain primarily liable to the Agent and the Lender for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Lender shall be entitled to deal exclusively with ABF in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent and the Lender shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than ABF in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. ABF, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Loan Agreement (Arkansas Best Corp /De/), Receivables Loan Agreement (Arkansas Best Corp /De/)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent and the Required Financial Institutions may, at any time following an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Seller may delegate, and Seller hereby advises the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation Purchasers, each of the ~~Servicer shall be evidenced by an opinion~~ Managing Agents and the Agent that it has delegated, to each of ~~counsel to such effect delivered to~~ the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power as sub-Servicers of the Servicer under ~~this Agreement, whether with respect to~~ the ~~Pledged Contracts, the other Collateral or otherwise shall pass to~~ authority and ~~be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf~~ direction of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to further delegate any of its duties or responsibilities as Servicer to any Person other ~~than (x) an Approved Sub-servicer and (y) except~~ than, with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ If at any time the ~~delegation by~~ Agent and the ~~Servicer of any of its duties or responsibilities~~ Required Financial Institutions shall designate as Servicer to any Person or Persons other than Seller, all duties and responsibilities theretofore delegated by Seller to any sub-Servicer (whether an Originator or any other Person) may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent and the Required Financial Institutions, be terminated forthwith on notice given by the Agent and the Required Financial Institutions to ~~this Section 6.01(g~~Seller. (c) Notwithstanding the foregoing subsection (b), (i) Seller shall be and remain primarily liable to the Managing Agents, the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Managing Agents, the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Seller in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Managing Agents, the Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Seller in order for communication to the ~~terms hereof~~Servicer and its sub-Servicers or other delegates with respect thereto to be accomplished. Seller, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ Servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Johnsondiversey Holdings Inc), Receivables Purchase Agreement (Johnsondiversey Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Allied is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time from and after the occurrence of an Amortization Event, designate as Servicer any Person to succeed Allied or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered Allied may delegate to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Liquidity Banks, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Allied shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Borrower, (ii) the Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Borrower nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Allied. If at any time the Agent shall designate as Servicer any Person other than Allied, all duties and responsibilities theretofore delegated by Allied to Borrower or the Originators may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to Allied and to Borrower and the Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b), for so long as Allied is the Servicer: (i) Allied shall be and remain primarily liable to the parties hereto for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) each of the parties hereto shall be entitled to deal exclusively with Allied in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. For so long as Allied is the Servicer, no party hereto shall be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Allied in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Allied, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Credit and Security Agreement (Allied Waste Industries Inc), Credit and Security Agreement (Allied Waste Industries Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ PSE is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Receivable or other Collateral. (b) Upon the occurrence and during the continuation of any Event of Termination, the Program Agent may, with the consent or shall at the direction of any Managing Agent, upon written notice to the parties hereto designate as Servicer any Person to succeed PSE (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC PSE and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b~~) or (c~~) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Receivables received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Receivables and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ PSE as Servicer, ~~DTCC~~ PSE shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an Approved Sub-servicer and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. . (e) Notwithstanding ~~the~~ any such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer~~ pursuant to ~~this Section 6.01(g)~~clause (d) above, (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the ~~Pledged Contracts~~ Receivables involving an Approved Sub-servicer shall be deemed to be between such ~~sub~~Approved Sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 2 contracts

Samples: Loan and Servicing Agreement (Puget Sound Energy Inc), Loan and Servicing Agreement (Puget Energy Inc /Wa)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Allied is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time from and after the occurrence of an Amortization Event, designate as Servicer any Person to succeed Allied or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered Allied may delegate to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Liquidity Banks, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Allied shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Borrower, (ii) the Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Borrower nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Allied. If at any time the Agent shall designate as Servicer any Person other than Allied, all duties and responsibilities theretofore delegated by Allied to Borrower or the Originators may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to Allied and to Borrower and the Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b), for so long as Allied is the Servicer: (i) Allied shall be and remain primarily liable to the parties hereto for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) each of the parties hereto shall be entitled to deal exclusively with Allied in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. For so long as Allied is the Servicer, no party hereto shall be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Allied in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Allied, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Credit and Security Agreement (Allied Waste Industries Inc), Credit and Security Agreement (Allied Waste Industries Inc)

Designation of Servicer. ~~(a)~~ The servicing, ~~administering~~ billing, administration and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the ~~Person~~ Servicer so designated hereunder from time to ~~time in accordance with this Section 6.01~~time. Until the ~~Program Agent,~~ Administrative Agent (with the consent or at the direction of the Majority Managing Agents, ) gives notice to the ~~Borrower and the Servicer~~ Seller of the designation of a new Servicer ~~as provided in Section 6.01(c) below~~(which notice may be given at any time following the occurrence and during the continuation of a Servicer Replacement Event), ~~DTCC~~ Medco is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall Medco may not resign from the obligations and ~~duties~~ liabilities hereby imposed on ~~it except upon the reasonable determination~~ it, unless required to do so by ~~the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable~~ law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be as evidenced by an opinion of counsel in form and substance satisfactory to ~~such effect delivered to the Program~~ each Managing Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The ~~Servicer agrees to cooperate with the Program~~ Administrative Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent or at the direction of the Majority Managing Agents), ~~shall appoint~~ at any time after the ~~Backup~~ occurrence and during the continuation of a Servicer Replacement Event, may designate as Servicer any Person (including itself) to succeed Medco or any successor Servicer, on such terms and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution conditions as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Administrative Agent ~~may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it~~ and such successor Servicer shall agree. The ~~Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor~~ Servicer may, at with the ~~direction~~ prior consent of the ~~Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors~~ Administrative Agent, subcontract with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such any other Person ~~or account as~~ for the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, ~~custody~~ administration or collection of the ~~Pledged Contracts and the successor Servicer shall have all of~~ Receivables. Any such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer subcontract shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent 's liability for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof. Without limiting the generality of the foregoing, ~~(ii)~~ any action taken or omitted to be taken by any Person that has entered into a subcontract with the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be ~~between such sub-servicer and~~ an action or omission by the Servicer ~~alone~~(including, without limitation, for purposes of determining whether any Receivable is a Diluted Receivable and ~~none~~ for purposes of ~~the Lenders, the Program Agent, the Managing Agents~~ Sections 6.06 and ~~the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer~~10.01).

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Medco Health Solutions Inc), Receivables Purchase Agreement (Medco Health Solutions Inc)

Designation of Servicer. (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract ~~Files~~ Debtor Documents to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract ~~Files~~ Debtor Documents and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 2 contracts

Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Acceptance Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Arch is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Administrator may, upon the occurrence of an Unmatured Amortization Event (other than one arising as a result of a Voluntary Termination, unless another Unmatured Amortization Event occurs), designate as Servicer any Person to succeed Arch or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ Arch may delegate, and Arch hereby advises the ~~obligations~~ Administrator, Market Street and ~~duties hereby imposed on~~ the LC Bank that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take has delegated, to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shalleach Originator, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have Administrator (~~i) no liability with respect to any obligation~~ which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not ~~affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f~~be unreasonably withheld) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Arch shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Seller, (ii) any Originator, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither the Seller nor the Originators shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Arch. If at any time the Administrator shall designate as Servicer any Person other than Arch, all duties and responsibilities theretofore delegated by Arch to the Seller or any Originator may, at the discretion of the Administrator, be terminated forthwith on notice given by the Administrator to Arch and to the Seller and such Originator. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) Arch shall be and remain primarily liable to the Administrator, Market Street and the LC Bank for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrator, Market Street and the LC Bank shall be entitled to deal exclusively with Arch in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrator, Market Street and the LC Bank shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Arch in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Arch, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Arch Chemicals Inc), Receivables Purchase Agreement (Arch Chemicals Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the ~~Program~~ Administrative Agent, with the consent or at the direction of the ~~Managing~~ Facility Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ NRG Retail LLC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Pool Receivable or other Collateral. (b) Upon the occurrence of any Event of Termination that has not been waived in writing, the Administrative Agent (i) shall at the request of the Majority Facility Agents or, at any time during which there are only two Facility Agents, at the request of either Facility Agent, or (ii) may with the consent of the Majority Facility Agents, (A) by written notice to the parties hereto designate as Servicer any Person to succeed NRG Retail LLC (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof and such replacement servicer shall have all required licenses and shall conduct its servicing at all times so as to not cause Borrower or any of its Affiliates to violate any applicable Law and (B) instruct the Borrower or the Servicer to give notice of the Administrative Agent’s interest in the Pool Receivables to each Obligor, which notice shall direct that payments be made directly to the Administrative Agent or its designee (for the benefit of each Secured Party), and the Borrower or the Servicer, as the case may be, shall give such notice at the expense of the Borrower or the Servicer, as the case may be; provided, that if the Borrower or the Servicer, as the case may be, fails to so notify each Obligor within 30 days after receipt of such instruction, the Administrative Agent (at the Borrower’s or the Servicer’s, as the case may be, expense) may so notify the Obligors. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC NRG Retail LLC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) ~~or (c)~~ above, it will cooperate with the Borrower, the ~~Program~~ Administrative Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, using commercially reasonable efforts in (i) assisting the successor Servicer in enforcing all of Borrower’s rights under the ~~Pledged Contracts~~ Pool Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor ~~Servicer~~Servicer or to the Borrower, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Pool Receivables received by such Servicer, (iii) transferring to the successor Servicer all ~~Records~~ books and records including the Contracts (or copies of books and records and Contracts) held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Pool Receivables and the ~~Records~~ books and records (including the Contracts) and taking all commercially reasonable actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ NRG Retail LLC as Servicer, ~~DTCC~~ NRG Retail LLC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) ~~Without the consent of each Managing Agent, the~~ The Servicer ~~shall not be permitted to~~ may delegate ~~any of~~ its duties ~~or responsibilities as Servicer~~ and obligations hereunder to any ~~Person other than~~ sub-servicer (~~x) an Approved~~ each a “Sub-~~servicer and (y) except with respect to certain Charged-Off Contracts~~Servicer”); provided, ~~to outside collection agencies~~ that, in ~~accordance with its customary practices. Notwithstanding the~~ each such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g),~~ (i) the Servicer shall remain primarily liable for the ~~timely and complete~~ performance of ~~its~~ the duties and obligations ~~pursuant to the terms hereof,~~ so delegated; (ii) the ~~Servicer shall retain management information systems and sufficient servicing capability~~Borrower, in the ~~reasonable judgment of the Program~~ Administrative Agent and each ~~Managing Agent,~~ Lender Group shall have the right to ~~perform~~ look solely to the ~~servicing functions described herein, and~~ Servicer for performance; (iii) unless such Sub-Servicer is a Utility that is providing invoicing services to an Originator, the terms of any ~~sub~~agreement with any Sub-~~servicing~~ Servicer shall provide that such agreement ~~that may be entered into and any other transactions or services relating~~ shall terminate upon the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer~~ Servicer (and the Servicer ~~alone~~shall provide appropriate notice to each such Sub-Servicer) and (iv) unless such Sub-Servicer is an Originator, ~~and none~~ another Affiliate of the ~~Lenders~~Servicer or a Utility that is providing invoicing services to an Originator, the ~~Program Agent~~Administrative Agent shall have consented in writing in advance to such delegation. For the avoidance of doubt, this Section 6.01(d) shall not apply to any Payment Processor, any third party collection agency collecting Defaulted Receivables or any other third party service provider assisting in the servicing of the Defaulted Receivables. None of the Borrower, the ~~Managing Agents~~ Administrative Agent and the ~~Liquidity Providers shall be deemed parties thereto or~~ members of the Lender Groups shall have any obligations, duties or liabilities with respect to any ~~Approved~~ Sub-~~servicer.~~Servicer, Payment Processor, any third party collection agency collecting Defaulted Receivables or any other third party service provider assisting in the servicing of the Defaulted Receivables

Appears in 2 contracts

Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the ~~Person~~ Servicer so designated hereunder from time to ~~time in accordance with this Section 6.01~~time. Until the Program ~~Agent, with the consent or at the direction of the Managing Agents,~~ Agent gives notice to the Borrower ~~and the Servicer~~ of the designation of a new Servicer ~~as provided~~ in ~~Section 6.01(c) below~~accordance with the terms hereof, ~~DTCC~~ HLIOC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. At any time after the occurrence and during the continuance of a Servicer Default, the Program Agent may and, at the request of the Required Investor Agents, the Program Agent shall designate as Servicer any Person (including itself) to succeed the Parent or any successor Servicer, if such Person shall consent and agree to the terms hereof. The ~~Borrower hereby grants to~~ Servicer ~~an irrevocable power of attorney~~may, with ~~full power~~ the prior consent of ~~substitution~~the Program Agent and each Investor Agent, ~~coupled~~ subcontract with ~~an interest, to take~~ any other Person (except that in the ~~name~~ case of an Originator no such consent is required) for the servicing, administration or collection of the ~~Borrower any~~ Receivables. Any such subcontract shall not affect the Servicer's liability for performance of its duties and ~~all steps which are necessary~~ obligations pursuant to the terms hereof, and shall automatically terminate upon designation of a successor Servicer. The Investors, Banks and Agents shall not be deemed parties to such subcontract and shall have no liabilities, obligations or ~~advisable~~ duties with respect to ~~endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~such subcontractor. (b) ~~The~~ HLIOC in its capacity as the Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that ~~(x)~~ the performance of its duties hereunder is no longer permissible under applicable law and ~~(y)~~ there is no reasonable action which ~~the Servicer~~ HLIOC could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shallIn any case, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer HLIOC agrees that, upon its resignation or replacement as Servicer pursuant ~~to Section 6.01(b) or (c) above~~hereto, it will cooperate with ~~the Borrower,~~ the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, : (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts and other~~ Collateral, (ii) transferring, promptly upon receipt, to the successor ~~Servicer,~~ Servicer any Collections or other amounts related to the ~~Pledged Contracts or other Collateral received by such Servicer~~Receivables, (iii) transferring to the successor Servicer all ~~Records~~ books and records held by or under the control of ~~such Servicer and~~ HLIOC, (iv) permitting the successor Servicer to have reasonable access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts~~ Collateral, and ~~other Collateral and~~ (v) in the ~~Records and~~ Program Agent's discretion, either continuing to use at the direction of the successor Servicer, or taking all actions reasonably necessary ~~in its control~~ to ~~permit the~~ obtain a sublicense for a successor Servicer to ~~use~~ use, all computer software and hardware that may facilitate the Servicer’s 's access to and use of such ~~information and acting as data processing agent for such successor Servicer if requested~~information. Upon the resignation or replacement of ~~DTCC~~ HLIOC as Servicer, ~~DTCC~~ HLIOC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Receivables Financing Agreement (Hayes Lemmerz International Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PSE is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time following the occurrence of an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed PSE or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PSE shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by PSE. If at any time following the occurrence of an Amortization Event the Agent shall designate as Servicer to any Person or other than PSE, all duties and responsibilities theretofore delegated by PSE to Seller may, at the ~~appointment~~ discretion of the Agent, be terminated forthwith on notice given by the Agent to PSE and to Seller. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation by PSE pursuant to ~~this Section 6.01(g~~the foregoing subsection (b), (i) PSE shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with PSE in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than PSE in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. PSE, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Puget Sound Energy Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Avnet is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Purchasers shall, at any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right~~ time after the occurrence of any ~~kind in connection with~~ Amortization Event, designate as Servicer any ~~Pledged Contract~~ Person to succeed Avnet or ~~other Collateral~~any successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Avnet shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies or law firms, taking action in connection with collection activities, in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Avnet. If at any time the Agent shall designate as Servicer to any Person or other than Avnet, all duties and responsibilities theretofore delegated by Avnet to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Avnet and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Avnet shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder (unless a successor servicer has been designated by the Agent pursuant to Section 8.1 hereof) and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Avnet in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program~~ responsibilities hereunder. The Agent and ~~each Managing Agent,~~ the Purchasers shall not be required to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.give

Appears in 1 contract

Samples: Receivables Purchase Agreement (Avnet Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~6. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney~~Administrative Agent may, ~~with full power of substitution, coupled with an interest, to take in~~ and at the ~~name~~ direction of the ~~Borrower~~ Required Investors shall, at any ~~and all steps which are necessary~~ time following the occurrence of a Servicer Default, designate as Servicer any Person to succeed the Seller or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Administrative Agent that it has delegated, to each Originator, as a subservicer of the Servicer, certain of its duties and responsibilities as Servicer hereunder in respect of the Receivables transferred by such Originator to Xxxxxxxx or the Seller, as applicable. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Administrative Agent and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Administrative Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its respective delegates and subservicers in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ Servicer, shall be ~~evidenced by an opinion of counsel to such effect delivered to the Program Agent~~responsible for providing its delegates and subservicers with any notice given under this Agreement. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitationRequired Investors, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x)~~ an ~~Approved Sub-servicer~~ Originator, and then such delegation shall be limited to the activities of Servicer hereunder as the same may relate to the Receivables originated by such Originator, and (yii) ~~except with respect~~ no Originator shall be permitted to ~~certain Charged-Off Contracts,~~ further delegate to ~~outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by the Seller. If at any time the Administrative Agent shall designate as Servicer to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~Seller, ~~(i) the Servicer shall remain liable for the timely and complete performance of its~~ all duties and ~~obligations pursuant~~ responsibilities theretofore delegated by the Seller to either Originator may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerSeller.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Donnelly Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Insight is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time following the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Insight or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Required Financial Institutionseach Managing Agent, ~~the Servicer~~ Insight shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the applicable Originator with respect to the Receivables originated by such Originator and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Neither the ~~delegation by the Servicer of~~ Seller nor any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Insight. If at any time the Agent, in accordance with Section 8.1(a), shall designate as Servicer to any Person or other than Insight, all duties and responsibilities theretofore delegated by Insight to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Insight and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) unless the Agent shall have designated a Person other than Insight to act as Servicer ~~shall remain liable for the timely and complete performance of its duties and obligations~~ pursuant to ~~the terms hereof~~this Section 8.1, ~~(ii) the Servicer~~ Insight shall ~~retain management information systems~~ be and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating remain primarily liable to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program~~ Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent, the Managing Agents and the Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with Insight in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Agent, the Managing Agents and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than Insight in order for communication to the Servicer and its sub-servicer or ~~liabilities~~ other delegate with respect thereto to be accomplished. Insight, at all times that it is the Servicer, shall be responsible for providing any ~~Approved Sub~~sub-~~servicer~~servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Insight Enterprises Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ Tampa Electric is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Pool Receivable or other Collateral. (b) Upon the occurrence and during the continuation of any Servicer Default, the Program Agent may, and at the direction of the Majority Managing Agents shall, upon written notice to the parties hereto designate as Servicer any Person to succeed Tampa Electric (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC Tampa Electric and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b~~) or (c~~) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Pool Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Pool Receivables received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Pool Receivables and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ Tampa Electric as Servicer, ~~DTCC~~ Tampa Electric shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an Approved Sub-servicer and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. . (e) Notwithstanding ~~the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or~~ the appointment of any Approved Sub-servicer pursuant to ~~this Section 6.01(g)~~clause (d) above, (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the ~~Pledged Contracts~~ Pool Receivables involving an Approved Sub-servicer shall be deemed to be between such ~~sub~~Approved Sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Teco Energy Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Transferred Receivables originated by each Seller shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section 6.01. ; provided, however, that the Servicer shall not have any rights to withdraw any amounts in any Lock-Box Account or any bank account of the Purchaser. (b) Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Purchaser gives notice (the "Successor Notice") to ~~the Borrower and the Servicer~~ any Seller of ~~the~~ a designation of a new Servicer ~~as provided in Section 6.01(c) below~~for such Seller's Transferred Receivables, ~~DTCC~~ Lane is hereby designated asas Servicer for Transferred Receivables originated by Lane or Action, Broyhill is hereby designated as Servicer for Transferred Receivables originated by Broyhill and Thomasville is hereby designated as Servicer for Transferred Receivables originated by Thomasville. Lane, Broyhill and Thomasville each hereby agrees to perform the duties and obligations ~~of,~~ of the Servicer for such Transferred Receivables pursuant to the terms hereof. The ~~Borrower hereby grants to~~ Successor Notice may only be given following the occurrence and during the continuation of a Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ Default. Any Servicer other than such Seller shall execute any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind~~ confidentiality agreement reasonably requested by such Seller in connection with ~~any Pledged Contract or other Collateral. (b) The Servicer shall not resign from~~ the ~~obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance~~ designation of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agenta new Servicer. (c) If Upon receipt by Lane, Broyhill or Thomasville of a Successor Notice, such Seller agrees that it will terminate its activities as Servicer ~~Default has occurred and is continuing~~ hereunder in a manner which the ~~Program Agent shall, if requested by~~ Purchaser (or its designee) believes will facilitate the ~~Majority Managing Agents, by notice in writing~~ transition of the performance of such activities to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the new Servicer, ~~as attorney-in-fact or otherwise, any~~ and ~~all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of~~ such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or Seller shall use its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and best efforts to assist the ~~successor Servicer in enforcing all rights under~~ Purchaser (or its designee) to take over the ~~Pledged Contracts. All reasonable costs~~ servicing, administering and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination collection of the ~~replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer~~Transferred Receivables. (d) ~~In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup~~ The Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the prior consent of the ~~Majority Managing Agents~~Purchaser, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent subcontract with ~~this Agreement, as shall be necessary to effectuate~~ any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, for servicing, ~~custody~~ administering or ~~collection of the Pledged Contracts and the successor Servicer shall have all of such obligations~~collecting Transferred Receivables, ~~except~~ provided that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the ~~timely and complete~~ performance of ~~its~~ the duties and obligations of the Servicer for the Transferred Receivables pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Purchase and Contribution Agreement (Interco Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Flowserve is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ At any time after an Amortization Event has occurred, the Agent may designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Flowserve or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Flowserve shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer and~~ Seller, (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary ~~practices. Notwithstanding~~ practices and (iii) any Affiliate of Flowserve; provided, that Flowserve shall be and remain primarily liable to the ~~delegation by~~ Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder after delegating such duties and responsibilities to any Affiliate of Flowserve. Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Flowserve. If at any time after the occurrence of an Amortization Event, the Agent shall designate as Servicer to any Person or other than Flowserve, all duties and responsibilities theretofore delegated by Flowserve to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Flowserve and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) until the Agent designates any Person other than an Affiliate of Flowserve to succeed Flowserve in accordance with Section 8(a), Flowserve shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Flowserve in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder (unless the Agent has replaced Flowserve as Servicer hereunder, in which case the Agent and Purchasers shall deal directly with such successor Servicer). The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Flowserve in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Flowserve, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Flowserve Corp)

Designation of Servicer. ACTIVE 200146376v.2 (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract ~~Files~~ Debtor Documents to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor ACTIVE 200146376v.2 Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract ~~Files~~ Debtor Documents and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved ~~Sub-~~Sub- ACTIVE 200146376v.2 servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)

Designation of Servicer. ~~(a)~~ The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by Citibank, N.A., London Branch (the "Servicer") or such other Person so designated from time to time ~~in accordance with~~ pursuant to this ~~Section 6.01~~Clause 12(A). Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Operating Agent gives notice to the ~~Borrower and the~~ Servicer of ~~the~~ a designation of a new ~~Servicer as provided in Section 6.01(c) below~~Servicer, ~~DTCC~~ Citibank, N.A., London Branch is ~~hereby~~ designated as, and agrees, subject to the provisions of this paragraph (A), to perform the duties and obligations of a Servicer pursuant to the terms of this Agreement. The Servicer hereby delegates to the Seller in respect of the Purchased Receivables originated by the Seller, duties and obligations as Servicer and the Seller (the "Sub-Servicer") hereby agrees to perform the duties and obligations ~~of,~~ of the Servicer pursuant to the terms ~~hereof~~of this Agreement in relation to the Purchased Receivables originated by it. The ~~Borrower~~ delegation hereby ~~grants~~ granted to the Sub-Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ may not be terminated by the ~~name~~ Sub-Servicer without the prior written consent of the ~~Borrower~~ Servicer and may be terminated at any time without a cause by the Servicer and, for so long as a Seller is acting as Sub-Servicer pursuant to the terms of this Agreement, (i) it shall perform the duties and obligations of the Servicer in respect of the Purchased Receivables originated by it and (ii) all ~~steps which are necessary or advisable~~ duties, obligations and indemnities expressed to ~~endorse, negotiate or otherwise realize on any writing or other right~~ be those of ~~any kind in connection with any Pledged Contract or other Collateral. (b)~~ a "Servicer" pursuant to Clause 5 and Clause 12 shall be regarded for all purposes as those of the relevant Sub-Servicer. The Servicer shall not ~~resign from~~ be liable for the performance of the duties and obligations of any Sub-Servicer under this Agreement and ~~duties hereby imposed on it except upon~~ the ~~reasonable determination by~~ Sub-Servicer shall be liable to the ~~Servicer that (x)~~ Operating Agent and the Buyer for the performance of its duties ~~hereunder is no longer permissible under applicable law~~ and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, obligations as ~~attorney~~Sub-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. ~~Upon appointment~~The Sub-Servicer may, with the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all prior written consent of the ~~rights granted to~~ Operating Agent, subcontract with any other Person for servicing, administering or collecting the ~~predecessor Servicer, by the terms and provisions of this Agreement~~Purchased Receivables; provided, however, that the ~~successor~~ Sub-Servicer (a) procures to the Operating Agent that its sub-contractor shall ~~have (i) no liability with respect~~ not delegate the servicing duties and obligations sub contracted to ~~any obligation which was required to be performed~~ it by the ~~predecessor~~ Sub-Servicer without the prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the written consent of the ~~Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program~~ Operating Agent and ~~such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.~~ (eb) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the ~~timely and complete~~ performance of its duties and obligations of Sub-Servicer under this Agreement. The Operating Agent may at any time designate as Servicer any Person to succeed the Servicer (which designation shall, for the avoidance of doubt, automatically terminate the delegation hereby granted to the Sub-Servicer) or any successor Servicer, on the condition in each case that any such Person agrees to perform the duties and obligations of Servicer pursuant to the terms ~~hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerthis Agreement.

Appears in 1 contract

Samples: Receivables Sale Agreement (Exide Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated ~~from time to time~~ in accordance with this ~~Section 6.01~~SECTION 8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC RCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time after (i) the Amortization Date or (ii) the Servicer fails to perform its duties in accordance with this Agreement designate as Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest,~~ any Person to ~~take in the name of the Borrower~~ succeed RCC or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ RCC shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Borrower and (yii) ~~except~~ with respect to certain Delinquent Receivables and Charged-Off ~~Contracts~~Receivables, to outside collection agencies or other similar entities in accordance with its customary practices. The Borrower shall not be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by RCC. If the Agent shall designate as Servicer any other Person to succeed RCC, all duties and responsibilities theretofore delegated by RCC to the Borrower may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to RCC and to the Borrower. (c) Notwithstanding the ~~delegation by the Servicer of~~ foregoing subsection (b), if RCC delegates any of its duties or responsibilities as Servicer to any Person ~~or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~, (i) RCC shall be and remain primarily liable to the Agent and the Lenders for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Lenders shall ~~remain liable for~~ be entitled to deal exclusively with RCC in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Lenders shall not be required to give notice, demand or other communication to any Person other than RCC in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. RCC, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Loan Funding Agreement (Reynolds & Reynolds Co)

Designation of Servicer. (ai) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC International Paper is hereby designated as, and ~~hereby~~ xxxxxx agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof. The Borrower hereby grants to Servicer an irrevocable power~~ of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. ~~Upon appointment, the successor Servicer~~ The Administrative Agent shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority ~~Managing Agents) notify~~ Co-Agents at any time following the ~~Contract Debtors with respect~~ occurrence and continuation of an Amortization Event designate as Servicer any Person to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the succeed International Paper or any successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except provided that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsRating Agency Condition is satisfied. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the prior written consent of ~~each Managing Agent~~the Agents, ~~the Servicer~~ International Paper shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer and~~ Borrower, (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) solely to the extent and on the conditions provided in Section 8.1(d), Cap Gemini-Poland. Neither Cap Gemini-Poland nor Borrower shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by International Paper. If at any time the Administrative Agent shall designate as Servicer any Person other than International Paper, all duties and responsibilities theretofore delegated by International Paper to Cap Gemini-Poland or Borrower may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to International Paper, Cap Gemini-Poland and Borrower. 46234227 1009038607v4 (iii)Notwithstanding the foregoing subsection (b): (i) International Paper shall be and remain primarily liable to the Agents and the Lenders for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Lenders shall be entitled to deal exclusively with International Paper in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Agents and the Lenders shall not be required to give notice, demand or other communication to any Person other than International Paper in order for communication to the Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. International Paper, at all times that it is the Servicer, shall be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Credit and Security Agreement (International Paper Co /New/)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Graybar is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ Upon the occurrence and during the continuance of a Potential Amortization Event or an Amortization Event, the Agent may designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Graybar or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Graybar shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Graybar. If at any time the Agent shall designate as Servicer to any Person or other than Graybar, all duties and responsibilities theretofore delegated by Graybar to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Graybar and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Graybar shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Graybar in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Graybar in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Graybar, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Graybar Electric Co Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the ~~Person~~ Servicer so designated from time to time in accordance with this Section ~~6.01~~8.1. ~~Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower~~ The Agent and the ~~Servicer of~~ Purchasers hereby appoint Seller to perform all such servicing, administration and collection tasks. Seller hereby delegates such servicing, administration and collection tasks to Cott and the ~~designation of a new Servicer as provided in Section 6.01(c) below, DTCC is~~ Agent and the Purchasers consent to such delegation. Cott hereby ~~designated as,~~ accepts such delegation from Seller and ~~hereby~~ agrees to perform the duties and obligations ~~of,~~ of the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney~~Agent may, ~~with full power of substitution, coupled with an interest, to take in~~ or upon the ~~name~~ direction of the ~~Borrower~~ Required Financial Institutions, the Agent shall, at any time after the occurrence and ~~all steps which are necessary or advisable~~ during the continuance of an Amortization Event, designate any Person to ~~endorse, negotiate or otherwise realize on any writing or other right~~ succeed Cott as Servicer. From and after the designation of any ~~kind in connection with~~ Person as the successor Servicer to Cott, the Agent may, or upon the direction of the Required Financial Institutions, the Agent shall designate any ~~Pledged Contract or other Collateral~~Person as a subsequent successor Servicer at any time. (b) ~~The~~ Without the prior written consent of the Agent and the Required Financial Institutions, Seller, Cott and any other Person subsequently designated as Servicer ~~shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination~~ by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder8.1(a)) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) Cott and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies and attorneys in accordance with its customary practices. If at any time the Agent shall designate any successor Servicer, all duties and responsibilities theretofore delegated to the Servicer being replaced may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to the Servicer being replaced and to Seller. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b), for so long as Cott shall serve as the Servicer (i) Cott shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with Cott in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Cott in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Cott, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Cott Corp /Cn/)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated from time to time in accordance with this ~~Section 6.01~~SECTION 6. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed the ~~name of the Borrower~~ Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Agent that it has delegated, to the Originator, as subservicer of the Servicer, certain of its duties and responsibilities as Servicer hereunder in respect of the Receivables transferred by the Originator to the Seller. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Agent and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its subservicer or other delegate in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ Servicer, shall be ~~evidenced by an opinion of counsel to such effect delivered to the Program Agent~~responsible for providing its subservicer or other delegate with any notice given under this Agreement. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitationRequired Investors, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x) an Approved Sub-servicer~~ the Originator, and then such delegation shall be limited to the activities of Servicer hereunder as the same may relate to the Receivables originated by the Originator, and (yii) ~~except with respect~~ no Originator shall be permitted to ~~certain Charged-Off Contracts,~~ further delegate to ~~outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by the Seller. If at any time the Agent shall designate as Servicer to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~Seller, ~~(i) the Servicer shall remain liable for the timely and complete performance of its~~ all duties and ~~obligations pursuant~~ responsibilities theretofore delegated by the Seller to the ~~terms hereof~~Originator may, ~~(ii)~~ at the ~~Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ discretion of the ~~Program Agent and each Managing~~ Agent, ~~to perform~~ be terminated forthwith on notice given by the ~~servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating~~ Agent to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerSeller.

Appears in 1 contract

Samples: Receivables Purchase Agreement (JPF Acquisition Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to -------- time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC AIL is hereby designated as, and ----------- hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time following the occurrence of an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed AIL or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer AIL shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other ~~than (x) an Approved Sub-servicer and (y) except~~ than, with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. If at any time the Agent shall designate as Servicer any Person other than AIL, all duties and responsibilities theretofore delegated by AIL to a subservicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to AIL and to Seller. (c) Notwithstanding the ~~delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) AIL shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with AIL in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than AIL in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. AIL, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Torchmark Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC ABDC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Required Purchaser Agents may at any time following the occurrence of an Amortization Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed ABDC or any successor Servicer; provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ ABDC may delegate, and ABDC hereby advises the ~~obligations~~ Administrator, each Purchaser Agent and ~~duties hereby imposed on~~ each Purchaser that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing Agents,~~ Required Purchaser Agents (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer ABDC shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the other Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by ABDC. If at any time the Required Purchaser Agents shall designate as Servicer any Person other than ABDC, all duties and responsibilities theretofore delegated by ABDC to Seller or the other Originators may, at the discretion of the Required Purchaser Agents, be terminated forthwith on notice given by the Required Purchaser Agents to ABDC and to Seller and the other Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) ABDC shall be and remain primarily liable to the Administrator, each Purchaser Agent and each Purchaser for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrator, each Purchaser Agent and each Purchaser shall be entitled to deal exclusively with ABDC in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrator, each Purchaser Agent and each Purchaser shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than ABDC in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. ABDC, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Amerisourcebergen Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Navistar is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time after a Servicer Termination Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Navistar or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Navistar shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Affiliate of Navistar and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Such Affiliate shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Navistar. If at any time the Agent shall designate as Servicer to any Person or other than Navistar, all duties and responsibilities theretofore delegated by Navistar to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Navistar and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Navistar , at all times that it or one of its Affiliates is the Servicer, shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Navistar in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Navistar at all times that it or an Affiliate of Navistar is Servicer in order for communication to the ~~terms hereof~~Servicer and its permitted delegate with respect thereto to be accomplished. Navistar, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Navistar Financial Corp)

Designation of Servicer. (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Timken Corporation is hereby designated as, and hereby agrees to perform the duties and obligations of, the ~~Servicer~~ “Servicer” pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent and the Managing Agents may, at any time after the occurrence and during the continuation of an Amortization Event, designate any Person (including itself) to ~~Servicer an irrevocable power of attorney~~service, ~~with full power of substitution, coupled with an interest, to take in~~ administer and collect the ~~name~~ Receivables and perform certain of the ~~Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right~~ obligations of ~~any kind in connection with any Pledged Contract or other Collateral~~the “Servicer” hereunder. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ The Timken Corporation shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by The Timken Corporation. If at any time the Agent or the Managing Agents shall designate as Servicer to any Person or other than The Timken Corporation, all duties and responsibilities theretofore delegated by The Timken Corporation to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent and the Managing Agents, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~The Timken Corporation and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) ~~the Servicer~~ The Timken Corporation shall be and remain primarily liable ~~for the timely and complete performance of its duties and obligations pursuant~~ to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent, the Managing Agents and the Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with The Timken Corporation in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Agent, the Managing Agents and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than The Timken Corporation in order for communication to the Servicer and its sub-servicers or ~~liabilities~~ other delegates with respect thereto to be accomplished. The Timken Corporation, at all times that it is the Servicer, shall be responsible for providing any ~~Approved Sub~~sub-~~servicer~~servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Timken Co)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated as “Servicer” hereunder from time to time in accordance with this Section ~~6.01~~8.1. Until the ~~Program Agent~~Administrative Agent gives to BSX a Successor Notice, ~~with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC~~ BSX is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) ~~The Servicer shall not resign~~ Upon BSX’s receipt of a notice from the ~~obligations and duties hereby imposed on~~ Administrative Agent of the Administrative Agent’s designation of a new Servicer pursuant to the terms hereof (a “Successor Notice”), BSX agrees that it ~~except upon~~ shall terminate its activities as Servicer hereunder in a manner that the ~~reasonable determination by~~ Administrative Agent reasonably believes will facilitate the ~~Servicer that (x)~~ transition of the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such ~~effect delivered~~ activities to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor new Servicer, and the ~~successor Servicer~~ Administrative Agent (or its designee) shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer assume each and ~~shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to~~ all of ~~the rights granted~~ BSX’s obligations to ~~the predecessor Servicer~~service and administer such Receivables, by on the terms and ~~provisions of this Agreement~~subject to the conditions herein set forth, and BSX shall use its best efforts to assist the Administrative Agent (or its designee) in assuming such obligations; ~~provided, however,~~ provided that ~~the successor Servicer shall have (i) no liability~~ with respect to ~~any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes~~ Acquired Receivables, the Servicer ~~or any claim of a third party based on any alleged action or inaction of~~ may instruct the ~~predecessor Servicer, (ii) no obligation~~ Obligors thereof to continue to pay Collections to any ~~taxes required~~ bank account to be which Collections for such Acquired Receivables were paid by the ~~Servicer~~Obligors prior to such receivables becoming Acquired Receivables, ~~(iii) no obligation to pay~~ so long as any ~~of the fees~~ and ~~expenses of~~ all payments or balances in such bank account on any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer day are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than automatically transferred within two (2) Business Days ~~thereafter), any amounts for~~ to a Lockbox listed on Exhibit IV hereto which ~~it has good funds (properly endorsed where required for~~ is subject to a Collection Account Agreement or a Collection Account listed on Exhibit IV hereto which is subject to a Collection Account Agreement. The Administrative Agent agrees not to give BSX a Successor Notice until after the ~~successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts~~ occurrence of an Amortization Event. Second Amended and ~~the replaced Servicer shall continue to do any~~ Restated Credit and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts.Security Agreement ~~(f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or~~ (c) ~~above~~BSX may delegate to each other Originator, ~~it will cooperate with~~ as sub-servicer of the ~~Borrower~~Servicer, ~~the Program Agent and the successor Servicer in effecting the termination~~ certain of its duties and responsibilities ~~and rights~~ as Servicer ~~hereunder, including, without limitation, (i) assisting~~ hereunder in respect of the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requestedReceivables. ~~Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g)~~ Without the prior written consent of ~~each Managing Agent~~the Agents, ~~the Servicer~~ BSX shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Borrower, (ii) any other Originator, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Borrower nor any other Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by BSX. If at any time the Administrative Agent shall designate as Servicer any Person other than BSX, all duties and responsibilities theretofore delegated by BSX to Borrower or any other Originator may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to BSX and to Borrower and the applicable Originator. (d) Notwithstanding delegation under the ~~delegation~~ foregoing subsection (c): (i) BSX shall be and remain primarily liable to the Agents and the Lenders for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Lenders shall be entitled to deal exclusively with BSX in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agents and the Lenders shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than BSX in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. BSX, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Credit and Security Agreement (Boston Scientific Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. ~~Until~~ On the ~~Program Agent~~Original Closing Date, ~~with~~ Mxxxxxxx was designated as and agreed to perform the ~~consent or at the direction~~ duties and obligations of, and as of the ~~Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and~~ Amendment Closing Date hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time following the occurrence of a Termination Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Mxxxxxxx or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take Mxxxxxxx xxx delegate to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shallany other Originator, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Mxxxxxxx shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the other Originators as stated in the immediately preceding sentence, and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Mxxxxxxx. If at any time following the occurrence of a Termination Event, the Agent shall designate as Servicer to any Person or other than Mxxxxxxx, all duties and responsibilities theretofore delegated by Mxxxxxxx to Seller may, at the ~~appointment~~ discretion of the Agent, be terminated forthwith on notice given by the Agent to Mxxxxxxx and to Seller. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation by Mxxxxxxx pursuant to ~~this Section 6.01(g~~the foregoing subsection (b), (i) Mxxxxxxx shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Mxxxxxxx in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Mxxxxxxx in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Mxxxxxxx, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Meredith Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Invacare is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time during the continuance an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Invacare or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Invacare may delegate, and Invacare hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agent that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take has delegated, to ~~make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation~~ each of the ~~Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If~~ other Originators, as a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions (such consent not to be unreasonably withheld or delayed), including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Invacare shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the other Originators and (yii) ~~except~~ with respect to ~~certain~~ Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ The Originators, as sub-servicers, shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Invacare. If at any time during the continuance of an Amortization Event, the Agent shall designate as Servicer any Person other than Invacare, all duties and responsibilities theretofore delegated by Invacare to any ~~Person or~~ Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Invacare and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) while Invacare or any of its Affiliates is Servicer, Invacare shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder regardless of the appointment of any sub-servicer, and (ii) while Invacare or any of its Affiliates is Servicer, the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Invacare in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Invacare in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Invacare, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Invacare Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Timken Corporation is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent and the Managing Agents may, at any time after the occurrence and during the continuation of an Amortization Event, designate as Servicer any Person (including itself) to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed The Timken Corporation or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ The Timken Corporation shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by The Timken Corporation. If at any time the Agent or the Managing Agents shall designate as Servicer to any Person or other than The Timken Corporation, all duties and responsibilities theretofore delegated by The Timken Corporation to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent and the Managing Agents, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~The Timken Corporation and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) ~~the Servicer~~ The Timken Corporation shall be and remain primarily liable ~~for the timely and complete performance of its duties and obligations pursuant~~ to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent, the Managing Agents and the Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with The Timken Corporation in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Agent, the Managing Agents and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than The Timken Corporation in order for communication to the Servicer and its sub-servicers or ~~liabilities~~ other delegates with respect thereto to be accomplished. The Timken Corporation, at all times that it is the Servicer, shall be responsible for providing any ~~Approved Sub~~sub-~~servicer~~servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Timken Co)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the ~~Program~~ Administrative Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ Xxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Receivable or other Collateral. (b) Upon the occurrence and during the continuation of any Servicer Default, the Administrative Agent may, with the consent or shall at the direction of the Required Managing Agents, upon written notice to the parties hereto designate as Servicer any Person to succeed Xxxxxx (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform, and be qualified to perform, the duties and obligations of the Servicer pursuant to the terms hereof and each of the other Facility Documents to which the Servicer is a party. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC Xxxxxx and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) ~~or (c)~~ above, it will cooperate with the Borrower, the ~~Program~~ Administrative Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Receivables received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Receivables and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ Xxxxxx as Servicer, ~~DTCC~~ Xxxxxx shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an Approved Sub-servicer and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. . (e) Notwithstanding ~~the~~ any such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer~~ pursuant to ~~this Section 6.01(g)~~clause (d) above, (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the ~~Program~~ Administrative Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the ~~Pledged Contracts~~ Receivables involving an Approved Sub-servicer shall be deemed to be between such ~~sub~~Approved Sub-servicer and the Servicer alone, and none of the Lenders, the ~~Program~~ Administrative Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Newell Rubbermaid Inc)

Designation of Servicer. ~~(a)~~ The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the “Servicer”) so designated hereunder from time to time. Until the RPA Final Payment Date, the Seller (or such other Person so as may be designated from time to time ~~in accordance with this Section 6.01. Until~~ under the ~~Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c~~RPA) ~~below, DTCC~~ is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. ~~The Borrower hereby grants~~ Following the RPA Final Payment Date, the Purchaser or its assignees, by notice to the Seller, may designate as Servicer ~~an irrevocable power~~ any Person (including itself) to succeed the Seller or any successor Servicer, if such Person shall consent and agree to the terms hereof. Upon the Seller’s receipt of ~~attorney~~such notice, ~~with full power~~ the Seller or any successor Servicer agrees that it will terminate its activities as Servicer hereunder in a manner which the Purchaser (or its designees or assignees) believes will facilitate the transition of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of such activities to the new Servicer, and the Seller shall use its ~~duties hereunder is no longer permissible under applicable law~~ best efforts to assist the Purchaser (or its designees or assignees) to take over the servicing, administration and ~~(y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation~~ collection of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, Receivables including, without limitation, ~~the transfer~~ providing access to ~~the Program Agent~~ and copies of all computer tapes or disks and other documents or instruments that evidence or relate to Receivables maintained in its ~~designee on behalf~~ capacity as Servicer and access to all employees and officers of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received Seller responsible with respect ~~to the Pledged Contracts~~ thereto. Each Servicer may (and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer~~. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may~~, with the prior consent of the ~~Majority Managing Agents, make such arrangements~~ Purchaser or its assignees) subcontract with any other Person for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, ~~custody~~ administration or collection of ~~the Pledged Contracts and the successor Servicer shall have all of~~ Receivables. Any such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer subcontract shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s ~~access to and use of such information and acting as data processing agent~~ liability for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any ~~other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer~~ such subcontract shall ~~be deemed to be between such sub-servicer and the Servicer alone, and none~~ terminate upon designation of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicera successor Servicer.

Appears in 1 contract

Samples: Purchase and Contribution Agreement (DST Systems Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ ------------------------- administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this -------- Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Eveready is hereby designated as, and hereby agrees to perform ------------ the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this -- Agreement. ~~The Borrower hereby grants~~ Upon the occurrence and during the continuance of a Potential -- Amortization Event or an Amortization Event, the Agent may designate as Servicer -- any Person to succeed Eveready or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ as "Servicer" hereunder. With the ~~name~~ prior written consent of the ~~Borrower any~~ Agent and upon the assumption of all ~~steps which are necessary or advisable~~ of the duties and obligations of "Servicer" hereunder by a successor Servicer acceptable to ~~endorse~~the Agent, ~~negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~Eveready may resign as Servicer. (b) ~~The Servicer shall not resign from~~ In the ~~obligations~~ ordinary course of business and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority Managing Agents,~~ Agent (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the ~~Program Agent~~ Servicer may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person ~~other than (x) an Approved Sub-servicer and (y) except with respect~~ who agrees to ~~certain Charged-Off Contracts, to outside collection agencies~~ conduct such duties or responsibilities in accordance with the Contracts, the Credit and Collection Policy and this Agreement. The fees of any Person to whom such duties or responsibilities are delegated shall be for the sole account of the Servicer. Any delegation shall not relieve the Servicer of its ~~customary practices~~duties, responsibilities or liabilities hereunder and shall not constitute a resignation under Section 8.1(a). ~~Notwithstanding~~ Any Collections or other amounts due to the ~~delegation~~ -------------- Agent or Purchasers hereunder held by any such delegate shall, for the purposes of this Agreement, be treated as held by the Servicer in trust for the holders of the Purchaser Interests. Each agreement by which the Servicer delegates any of its duties or responsibilities to any other Person (including, without limitation, Seller) shall state that if at any time the Agent shall designate as Servicer any Person other than such delegating Servicer, all duties and responsibilities theretofore delegated by such Servicer to such Person may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to such delegating Servicer and such Person. If the Servicer shall delegate any duties or responsibilities to Seller, Seller shall not be permitted to further delegate to any other Person any of such duties or responsibilities. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) the Servicer shall be and remain primarily liable to the Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with the Servicer in matters relating to the discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Servicer in order for communication to the ~~terms hereof, (ii) the~~ Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. The Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Energizer Holdings Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC MPC LP is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer~~ Administrative Agent may, at any time after the occurrence and during the continuance of an ~~irrevocable power of attorney~~Amortization Event, ~~with full power of substitution, coupled with an interest, to take in~~ at the ~~name~~ direction of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Required Managing Agents, ~~by notice in writing to the~~ designate as Servicer (~~a copy of which shall also be delivered~~ i) any Person to ~~the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions~~ succeed MPC LP or (ii) any successor to such ~~termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the~~ Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the that replaced ~~Servicer upon presentation of reasonable documentation of such costs and expenses~~MPC LP; provided, however, that ~~if the replaced Servicer fails to pay~~ in either case, no such ~~costs and expenses promptly, the successor Servicer~~ Person shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicera Marathon Competitor. (di) In Without the ~~event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the ~~Majority~~ Administrative Agent and the Required Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer MPC LP shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xA) ~~an Approved Sub-servicer~~ Seller; (B) one or more Affiliates of MPC LP, upon written notice to the Administrative Agent and the Managing Agents; and (yC) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Charged‑Off Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller of any such Affiliate shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer so delegated to it by MPC LP.If at any time the Administrative Agent shall designate as Servicer to any Person other than MPC LP, all duties and responsibilities theretofore delegated by MPC LP to Seller or any such Affiliate may, at the ~~appointment~~ discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to MPC LP and to Seller or such Affiliate, as applicable. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation of MPC LP’s duties as Servicer pursuant to ~~this Section 6.01(g~~the foregoing subsection (b)(i), (i) MPC LP shall be and remain primarily liable to the ~~Servicer shall remain liable~~ Administrative Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall be entitled to deal exclusively with MPC LP in matters relating to the discharge by Servicer of its duties and ~~obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program~~ responsibilities hereunder. The Administrative Agent and ~~each Managing Agent~~the Purchasers shall not be required to give notice, demand or other communication to ~~perform the servicing functions described herein~~any Person other than MPC LP in order for communication to Servicer and its subservicer or other delegate with respect thereto to be accomplished. MPC LP, ~~and (iii) any sub-servicing agreement~~ at all times that ~~may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer~~ it is Servicer, shall be ~~deemed~~ responsible for providing any sub‑servicer or other delegate of Servicer with any notice given to ~~be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Insight is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time following the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Insight or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Insight shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the applicable Originator with respect to the Receivables originated by such Originator and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Neither the ~~delegation by the Servicer of~~ Seller nor any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Insight. If at any time the Agent shall designate as Servicer to any Person or other than Insight, all duties and responsibilities theretofore delegated by Insight to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Insight and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) unless the Agent shall have designated a Person other than Insight to act as Servicer pursuant to Section 8.1, Insight shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Insight in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Insight in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Insight, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Insight Enterprises Inc)

Designation of Servicer. (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the ~~Majority~~ Required Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent ~~or its designee~~ on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority~~ Required Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the ~~Majority~~ Required Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the ~~Majority~~ Required Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Loan and Servicing Agreement (DriveTime Automotive, Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by ~~the~~ such Person so designated as “Servicer” from time to time in accordance with this Section ~~6.01~~8.1. ~~Until the Program Agent~~Energizer Battery, ~~with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC~~ Inc. is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ Upon the occurrence and during the continuance of a Potential Amortization Event or an Amortization Event, the Administrative Agent may designate as Servicer any Person to succeed Energizer Battery, Inc. or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ as “Servicer” hereunder. With the ~~name~~ prior written consent of the ~~Borrower any~~ Administrative Agent and upon the assumption of all ~~steps which are necessary or advisable~~ of the duties and obligations of “Servicer” hereunder by a successor Servicer acceptable to ~~endorse~~the Administrative Agent, ~~negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~Energizer Battery, Inc. may resign as Servicer. (b) ~~The Servicer shall not resign from~~ In the ~~obligations~~ ordinary course of business and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority Managing Agents,~~ Administrative Agent (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the ~~Program Agent~~ Servicer may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its other duties or responsibilities as Servicer to any Person ~~other than (x) an Approved Sub-servicer~~ who agrees to conduct such duties or responsibilities in accordance with the Contracts, the Credit and ~~(y) except~~ Collection Policy and this Agreement. The Servicer hereby delegates, and EPC hereby assumes, all of Servicer’s duties and responsibilities as Servicer with respect to ~~certain Charged-Off Contracts,~~ the Receivables purchased by Seller from Originator and which Originator has purchased from EPC pursuant to ~~outside collection agencies~~ the Transfer Agreement. EPC agrees to conduct such duties or responsibilities in accordance with ~~its customary practices~~the Contracts, the Credit and Collections Policy the Receivables Sale Agreement, the Transfer Agreement and this Agreement. ~~Notwithstanding~~ The fees of EPC or any other Person to whom such duties or responsibilities are delegated shall be for the sole account of Servicer. Any delegation ~~by the~~ shall not relieve Servicer of its duties, responsibilities or liabilities hereunder and shall not constitute a resignation under Section 8.1(a). Any Collections or other amounts due to the Administrative Agent, the Agents or Purchasers hereunder held by any such delegate shall, for the purposes of this Agreement, be treated as held by Servicer in trust for the holders of the Purchaser Interests. Each agreement by which Servicer delegates any of its duties or responsibilities to any other Person (including, without limitation, Seller) shall state that if at any time the Administrative Agent shall designate as Servicer any Person other than such delegating Servicer, all duties and responsibilities theretofore delegated by such Servicer to such Person may, at the discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to such delegating Servicer and such Person. If Servicer shall delegate any duties or responsibilities to Seller, Seller shall not be permitted to further delegate to any other Person any of such duties or responsibilities. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) ~~the~~ Servicer shall be and remain primarily liable to the Administrative Agent, the Agents and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) the Administrative Agent, the Agents and the Purchasers shall be entitled to deal exclusively with Servicer in matters relating to the discharge by Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Administrative Agent, the Agents and the Purchasers shall not be required to ~~the terms hereof~~give notice, ~~(ii) the~~ demand or other communication to any Person other than Servicer in order for communication to Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Energizer Holdings Inc)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the ~~Program~~ Administrative Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section ~~6.01(c~~6.01(b) below, ~~DTCC~~ Xxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any ~~Pledged Contract~~ Receivable or other Collateral. (b) Upon the occurrence and during the continuation of any Servicer Default, the Administrative Agent may, with the consent or shall at the direction of the Required Managing Agents, upon written notice to the parties hereto designate as Servicer any Person to succeed Xxxxxx (or any successor Servicer) subject to the condition that any such Person so designated shall agree to perform, and be qualified to perform, the duties and obligations of the Servicer pursuant to the terms hereof and each of the other Facility Documents to which the Servicer is a party. The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent~~. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC Xxxxxx and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) ~~or (c)~~ above, it will cooperate with the Borrower, the ~~Program~~ Administrative Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Receivables received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Receivables and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of ~~DTCC~~ Xxxxxx as Servicer, ~~DTCC~~ Xxxxxx shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (gd) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an Approved Sub-servicer and (yii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. . (e) Notwithstanding ~~the~~ any such delegation ~~by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer~~ pursuant to ~~this Section 6.01(g)~~clause (d) above, (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the ~~Program~~ Administrative Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the ~~Pledged Contracts~~ Receivables involving an Approved Sub-servicer shall be deemed to be between such ~~sub~~Approved Sub-servicer and the Servicer alone, and none of the Lenders, the ~~Program~~ Issuing Lender, the Administrative Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Newell Brands Inc)

Designation of Servicer. ~~(a)~~ The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by Citibank, N.A., London Branch (the "Servicer") or such other Person so designated from time to time ~~in accordance with~~ pursuant to this ~~Section 6.01~~Clause 12(A). Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Operating Agent gives notice to the ~~Borrower and the~~ Servicer of ~~the~~ a designation of a new ~~Servicer as provided in Section 6.01(c) below~~Servicer, ~~DTCC~~ Citibank, N.A., London Branch is ~~hereby~~ designated as, and agrees, subject to the provisions of this paragraph (A), to perform the duties and obligations of a Servicer pursuant to the terms of this Deed. The Servicer hereby delegates to each Seller in respect of the Purchased Receivables originated by such Seller, its duties and obligations as Servicer and each such Seller (each a "Sub-Servicer") hereby agrees to perform the duties and obligations ~~of,~~ of the Servicer pursuant to the terms ~~hereof~~of this Deed in relation to the Purchased Receivables originated by it. The ~~Borrower~~ delegation hereby ~~grants~~ granted to each Sub-Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ may not be terminated by the ~~name~~ Sub-Servicer without the prior written consent of the ~~Borrower~~ Servicer and may be terminated at any time and without a cause by the Servicer and, for so long as a Seller is acting as Sub-Servicer pursuant to the terms of this Deed, (i) it shall perform the duties and obligations of the Servicer in respect of the Purchased Receivables originated by it and (ii) all ~~steps which are necessary or advisable~~ duties, obligations and indemnities expressed to ~~endorse, negotiate or otherwise realize on any writing or other right~~ be those of ~~any kind in connection with any Pledged Contract or other Collateral. (b)~~ a "Servicer" pursuant to Clause 5 and this Clause 12 shall be regarded for all purposes as those of the relevant Sub-Servicer. The Servicer shall not ~~resign from~~ be liable for the performance of the duties and obligations of any Sub-Servicer under this Deed and ~~duties hereby imposed on it except upon~~ each Sub-Servicer shall be liable to the ~~reasonable determination by~~ Operating Agent and the ~~Servicer that (x)~~ Buyer for the performance of its duties ~~hereunder is no longer permissible under applicable law~~ and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the obligations as Sub-Servicer under this ~~Agreement~~Deed. Each Sub-Servicer may, ~~whether~~ with ~~respect to~~ the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf prior written consent of the ~~Servicer~~Operating Agent, ~~as attorney-in-fact~~ subcontract with any other Person for servicing, administering or ~~otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect~~ collecting the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expensesPurchased Receivables; provided, however, that ~~if the replaced~~ such Sub-Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior (a) procures to the ~~date of termination of~~ Operating Agent that its sub-contractor shall not delegate the ~~replaced Servicer (including all amounts expended~~ servicing duties and obligations sub contracted to it by the ~~replaced~~ Sub-Servicer ~~that would otherwise have been reimbursable to it hereunder) shall be paid to~~ without the ~~replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Operating Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (ivb) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the ~~timely and complete~~ performance of its duties and obligations of Sub-Servicer under this Deed. The Operating Agent hereby agrees that Exide Dagenham will, from the date hereof, subcontract with Exide Batteries the duties and obligations of Exide Dagenham as Sub-Servicer. The Operating Agent may at any time designate as Servicer any Person to succeed the Servicer (which designation shall, for the avoidance of doubt, automatically terminate the delegation hereby granted to the Sub-Servicer) or any successor Servicer, on the condition in each case that any such Person agrees to perform the duties and obligations of Servicer pursuant to the terms ~~hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerthis Deed.

Appears in 1 contract

Samples: Receivables Securitisation Deed (Exide Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by ~~the~~ such Person so designated as “Servicer” from time to time in accordance with this Section ~~6.01~~8.1. ~~Until the Program Agent~~Energizer Battery, ~~with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC~~ Inc. is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ Upon the occurrence and during the continuance of a Potential Amortization Event or an Amortization Event, the Agent may designate as Servicer any Person to succeed Energizer Battery, Inc. or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ as “Servicer” hereunder. With the ~~name~~ prior written consent of the ~~Borrower any~~ Agent and upon the assumption of all ~~steps which are necessary or advisable~~ of the duties and obligations of “Servicer” hereunder by a successor Servicer acceptable to ~~endorse~~the Agent, ~~negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~Energizer Battery, Inc. may resign as Servicer. (b) ~~The Servicer shall not resign from~~ In the ~~obligations~~ ordinary course of business and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority Managing Agents,~~ Agent (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the ~~Program Agent~~ Servicer may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its other duties or responsibilities as Servicer to any Person ~~other than (x) an Approved Sub-servicer~~ who agrees to conduct such duties or responsibilities in accordance with the Contracts, the Credit and ~~(y) except~~ Collection Policy and this Agreement. The Servicer may, from time to time, delegate all of Servicer’s duties and responsibilities as Servicer with respect to ~~certain Charged-Off Contracts~~the Receivables purchased by Seller from Originator and which Originator has purchased from any Original Seller pursuant to the Transfer Agreement. Each Original Seller, as delegatee, shall agree, in form and substance acceptable to the Agent, to ~~outside collection agencies~~ conduct such duties or responsibilities in accordance with ~~its customary practices~~the Contracts, the Credit and Collections Policy the Receivables Sale Agreement, the Transfer Agreement and this Agreement. ~~Notwithstanding~~ The fees of any Person to whom such duties or responsibilities are delegated shall be for the sole account of Servicer. Any delegation ~~by the~~ shall not relieve Servicer of its duties, responsibilities or liabilities hereunder and shall not constitute a resignation under Section 8.1(a). Any Collections or other amounts due to the Agent or Purchasers hereunder held by any such delegate shall, for the purposes of this Agreement, be treated as held by Servicer in trust for the holders of the Purchaser Interests. Each agreement by which Servicer delegates any of its duties or responsibilities to any other Person (including, without limitation, Seller) shall state that if at any time the Agent shall designate as Servicer any Person other than such delegating Servicer, all duties and responsibilities theretofore delegated by such Servicer to such Person may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to such delegating Servicer and such Person. If Servicer shall delegate any duties or responsibilities to Seller, Seller shall not be permitted to further delegate to any other Person any of such duties or responsibilities. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) ~~the~~ Servicer shall be and remain primarily liable to the Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with Servicer in matters relating to the discharge by Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to ~~the terms hereof~~give notice, ~~(ii) the~~ demand or other communication to any Person other than Servicer in order for communication to Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of Servicer with any ~~other transactions or services relating~~ notice given to ~~the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Energizer Holdings Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Insight is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time following the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Insight or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ Insight shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the applicable Originator with respect to the Receivables originated by such Originator and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Insight. If at any time the Agent, in accordance with Section 8.1(a), shall designate as Servicer to any Person or other than Insight, all duties and responsibilities theretofore delegated by Insight to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Insight and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) unless the Agent shall have designated a Person other than Insight to act as Servicer ~~shall remain liable for the timely and complete performance of its duties and obligations~~ pursuant to ~~the terms hereof~~this Section 8.1, ~~(ii) the Servicer~~ Insight shall ~~retain management information systems~~ be and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating remain primarily liable to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program~~ Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent, the Managing Agents and the Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with Insight in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Agent, the Managing Agents and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than Insight in order for communication to the Servicer and its sub-servicer or ~~liabilities~~ other delegate with respect thereto to be accomplished. Insight, at all times that it is the Servicer, shall be responsible for providing any ~~Approved Sub~~sub-~~servicer~~servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Insight Enterprises Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC O&M Medical is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ At any time after the occurrence of an Amortization Event, the Agents may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed O&M Medical or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ O&M Medical may delegate, and O&M Medical hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agents that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originators. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the ~~Majority Managing~~ Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer O&M Medical shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x) an Approved Sub-servicer and (y) except~~ the Originators, other than with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ If at any time following the ~~delegation~~ occurrence of an Amortization Event the Agents shall designate as Servicer any Person other than O&M Medical, all duties and responsibilities theretofore delegated by O&M Medical to any Originator may, at the ~~Servicer~~ discretion of any of ~~its duties or responsibilities as Servicer~~ the Agents, be terminated forthwith on notice given by any Agent to ~~any Person or~~ the ~~appointment of any Approved Sub-servicer pursuant~~ other Agents, O&M Medical and to ~~this Section 6.01(g~~Seller. (c) Notwithstanding the foregoing subsection (b), (i) O&M Medical shall be and remain primarily liable to the Agents and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with O&M Medical in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agents and the Purchasers shall not be required to give notice, demand or other communication to any Person other than O&M Medical in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. O&M Medical, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Owens & Minor Inc/Va/)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated from time to time in accordance with this ~~Section 6.01~~SECTION 8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Pioneer is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Collateral Agent may at any time following the occurrence and during the continuation of an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Pioneer or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Committed Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Pioneer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ The Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Pioneer. If at any time the Collateral Agent shall designate as Servicer to any Person or other than Pioneer, all duties and responsibilities theretofore delegated by Pioneer to the ~~appointment~~ Seller may, at the discretion of ~~any Approved Sub-servicer pursuant~~ the Collateral Agent, be terminated forthwith on notice given by the Collateral Agent to ~~this Section 6.01(g~~Pioneer and to the Seller. (c) Notwithstanding the foregoing subsection (b), (i) Pioneer shall be and remain primarily liable to the Collateral Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer ~~shall remain liable for the timely~~ hereunder and ~~complete performance of its duties and obligations pursuant to the terms hereof,~~ (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Collateral Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with Pioneer in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Collateral Agent, the Managing Agents and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than Pioneer in order for communication to the Servicer and its sub-servicer or ~~liabilities~~ other delegate with respect thereto to be accomplished. Pioneer, at all times that it is the Servicer, shall be responsible for providing any ~~Approved Sub~~sub-~~servicer~~servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Pioneer Standard Electronics Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.1. ~~Until the Program Agent~~Energizer Battery, ~~with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC~~ Inc. is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ Upon the occurrence and during the continuance of a Potential Amortization Event or an Amortization Event, the Agent may designate as Servicer any Person to succeed Energizer Battery, Inc. or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ as "Servicer" hereunder. With the ~~name~~ prior written consent of the ~~Borrower any~~ Agent and upon the assumption of all ~~steps which are necessary or advisable~~ of the duties and obligations of "Servicer" hereunder by a successor Servicer acceptable to ~~endorse~~the Agent, ~~negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~Energizer Battery, Inc. may resign as Servicer. (b) ~~The Servicer shall not resign from~~ In the ~~obligations~~ ordinary course of business and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority Managing Agents,~~ Agent (which consent shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not ~~been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c~~be unreasonably withheld), the ~~Program Agent~~ Servicer may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person ~~other than (x) an Approved Sub-servicer and (y) except with respect~~ who agrees to ~~certain Charged-Off Contracts, to outside collection agencies~~ conduct such duties or responsibilities in accordance with the Contracts, the Credit and Collection Policy and this Agreement. The fees of any Person to whom such duties or responsibilities are delegated shall be for the sole account of the Servicer. Any delegation shall not relievethe Servicer of its ~~customary practices~~duties, responsibilities or liabilities hereunder and shall not constitute a resignation under Section 8.1(a). ~~Notwithstanding~~ Any Collections or other amounts due to the ~~delegation~~ Agent or Purchasers hereunder held by any such delegate shall, for the purposes of this Agreement, be treated as held by the Servicer in trust for the holders of the Purchaser Interests. Each agreement by which the Servicer delegates any of its duties or responsibilities to any other Person (including, without limitation, Seller) shall state that if at any time the Agent shall designate as Servicer any Person other than such delegating Servicer, all duties and responsibilities theretofore delegated by such Servicer to such Person may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to such delegating Servicer and such Person. If the Servicer shall delegate any duties or responsibilities to Seller, Seller shall not be permitted to further delegate to any other Person any of such duties or responsibilities. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) the Servicer shall be and remain primarily liable to the Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with the Servicer in matters relating to the discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Servicer in order for communication to the ~~terms hereof, (ii) the~~ Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. The Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and any~~ servicer or other ~~transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and~~ delegate of the Servicer ~~alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have~~ with any ~~obligations, duties or liabilities with respect to any Approved Sub-servicer~~notice given tothe Servicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Energizer Holdings Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Arch is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Administrator may, upon the occurrence of an Unmatured Amortization Event (other than one arising as a result of a Voluntary Termination, unless another Unmatured Amortization Event occurs), designate as Servicer any Person to succeed Arch or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ provided that the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ Arch may delegate, and Arch hereby advises the ~~obligations~~ Administrator and ~~duties hereby imposed on~~ TPF that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take has delegated, to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shalleach Originator, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have Administrator (~~i) no liability with respect to any obligation~~ which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not ~~affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f~~be unreasonably withheld) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Arch shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ the Seller, (ii) any Originator, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither the Seller nor the Originators shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Arch. If at any time the Administrator shall designate as Servicer any Person other than Arch, all duties and responsibilities theretofore delegated by Arch to the Seller or any Originator may, at the discretion of the Administrator, be terminated forthwith on notice given by the Administrator to Arch and to the Seller and such Originator. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) Arch shall be and remain primarily liable to the Administrator and TPF for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Administrator and TPF shall be entitled to deal exclusively with Arch in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Administrator and TPF shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Arch in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Arch, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Arch Chemicals Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC ACBL is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, upon the occurrence of an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed ACBL or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer ACBL shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by ACBL. If at any time the Agent shall designate as Servicer to any Person or other than ACBL, all duties and responsibilities theretofore delegated by ACBL to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~ACBL and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) ACBL shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with ACBL in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than ACBL in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. ACBL, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (American Commercial Lines LLC)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Convergys is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants~~ At any time after the occurrence of an Amortization Event, the Agents and the Purchasers may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Convergys or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Convergys may delegate, and Convergys hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agents that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originators. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of ~~the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer,~~ Wachovia and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Scotiabank Group Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the Originators, and (yiii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of Servicer delegated to it by Convergys. If at any time following the occurrence of an Amortization Event, Wachovia and the Scotiabank Group Agent shall designate as Servicer any Person other than Convergys, all duties and responsibilities theretofore delegated by Convergys to Seller or any Originator may, at the discretion of any of ~~its duties~~ the Agents, be terminated forthwith on notice given by any Agent or ~~responsibilities~~ Wachovia to the other Agent or Wachovia, as ~~Servicer~~ applicable, Convergys and to ~~any Person or~~ Seller. (c) Notwithstanding the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g~~foregoing subsection (b), (i) Servicer shall be and remain primarily liable to the Agents and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agents and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Servicer in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agents and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Servicer in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Servicer, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Convergys Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC PFG is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed PFG or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ PFG may delegate, and PFG hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agent that it ~~except upon the reasonable determination by~~ has delegated, to each Originator, as sub-servicer of the Servicer ~~that~~ (~~x) the performance~~ in such capacity, together with Seller, a "Permitted Sub-Servicer"), certain of its duties and responsibilities as Servicer hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation in respect of the ~~Servicer shall be evidenced~~ Receivables originated by ~~an opinion of counsel to~~ such ~~effect delivered to~~ Originator. Without the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer PFG shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved~~ the Permitted Sub-~~servicer~~ Servicer, and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by PFG. If at any time the Agent shall designate as Servicer any Person other than PFG, all duties and responsibilities theretofore delegated by PFG to any ~~Person or the appointment of any Approved~~ Permitted Sub-~~servicer pursuant~~ Servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~PFG and Seller. (c) Notwithstanding the foregoing subsection (b), (i) PFG shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with PFG in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than PFG in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. PFG, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Performance Food Group Co)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Anixter is hereby designated as, and ~~hereby~~ hxxxxx agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. ~~The Borrower hereby grants to~~ Anixter shall not resign as the Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ without the ~~name~~ prior written consent of the ~~Borrower~~ Agent and the Required Financial Institutions. After the occurrence and during the continuation of an Amortization Event, the Agent may at any ~~and all steps which are necessary~~ time designate as Servicer any Person to succeed Anixter or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Anixter shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Anixter. If at any time the Agent shall designate as Servicer to any Person or other than Anixter, all duties and responsibilities theretofore delegated by Anixter to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Anixter and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) Anixter shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer (other than any Servicer appointed by the Agent without Anixter's consent) hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Anixter in matters relating to the ~~timely and complete performance~~ discharge by the Servicer (other than any Servicer appointed by the Agent without Anixter's consent) of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Anixter in order for communication to the ~~terms hereof~~Servicer (other than any Servicer appointed by the Agent without Anixter's consent) and its sub-servicer or other delegate with respect thereto to be accomplished. Anixter, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Purchase Agreement (Anixter International Inc)

Designation of Servicer. ~~(a)~~ The servicing, administering and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by Citibank, N.A., London Branch (the "Servicer") or such other Person so designated from time to time ~~in accordance with~~ pursuant to this ~~Section 6.01~~Clause 12(A). Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Operating Agent gives notice to the ~~Borrower and the~~ Servicer of ~~the~~ a designation of a new ~~Servicer as provided in Section 6.01(c) below~~Servicer, ~~DTCC~~ Citibank, N.A., London Branch is ~~hereby~~ designated as, and agrees, subject to the provisions of this paragraph (A), to perform the duties and obligations of a Servicer pursuant to the terms of this Agreement. The Servicer hereby delegates to Exide Funding in respect of the Paid Receivables its duties and obligations of Servicer and Exide Funding (the "Sub-Servicer") hereby agrees to perform the duties and obligations ~~of,~~ of the Servicer pursuant to the terms ~~hereof~~of this Agreement in relation to the Paid Receivables. The ~~Borrower~~ delegation hereby ~~grants~~ granted to the Sub-Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ may not be terminated by the ~~name~~ Sub-Servicer without the prior written consent of the ~~Borrower~~ Servicer and may be terminated at any time and without a cause by the Servicer and, for so long as Exide Funding is acting as Sub-Servicer pursuant to the terms of this Agreement, (i) it shall perform the duties and obligations of the Servicer in respect of the Paid Receivables and (ii) all ~~steps which are necessary or advisable~~ duties, obligations and indemnities expressed to ~~endorse, negotiate or otherwise realize on any writing or other right~~ be those of ~~any kind in connection with any Pledged Contract or other Collateral. (b)~~ a "Servicer" pursuant to Clause 5 and this Clause 12 shall be regarded for all purposes as those of the Sub-Servicer. The Servicer shall not ~~resign from~~ be liable for the performance of the duties and obligations of the Sub-Servicer under this Agreement and ~~duties hereby imposed on it except upon~~ the ~~reasonable determination by~~ Sub-Servicer shall be liable to the ~~Servicer that (x)~~ Operating Agent and the Buyer for the performance of its duties ~~hereunder is no longer permissible under applicable law~~ and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the obligations as Sub-Servicer under this Agreement. The Sub-Servicer may, ~~whether~~ with ~~respect~~ the prior consent of the Operating Agent, subcontract with the Originators for the Receivables they have originated or with any other Person authorised to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver act as servicer on behalf of third parties in France for servicing, administering or collecting the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expensesPaid Receivables; provided, however, that ~~if the replaced~~ such Sub-Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior (a) procures to the ~~date of termination of~~ Operating Agent that its sub-contractor shall not delegate the ~~replaced Servicer (including all amounts expended~~ servicing duties and obligations subcontracted to it by the ~~replaced~~ Sub-Servicer ~~that would otherwise have been reimbursable to it hereunder) shall be paid to~~ without the ~~replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Operating Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (ivb) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the ~~timely and complete~~ performance of its duties and obligations of the Sub-Servicer under this Agreement. The Operating Agent may at any time designate as Servicer any Person to succeed the Servicer (which designation shall, for the avoidance of doubt, automatically terminate the delegation hereby granted to the Sub-Servicer) or any successor Servicer, on the condition in each case that any such Person agrees to perform the duties and obligations of Servicer pursuant to the terms ~~hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerthis Agreement.

Appears in 1 contract

Samples: Onward Receivables Sale Agreement (Exide Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC TWRI is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time following the occurrence and during the continuation of a Servicer Default designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed TWRI or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer TWRI shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer and (y) except~~ with respect to ~~certain~~ Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices, and (ii) with the prior written consent of the Agent (such consent not to be unreasonably withheld), any other sub-servicer appointed by the Servicer. If at any time the Agent shall designate as Servicer any Person other than TWRI, all duties and responsibilities theretofore delegated by TWRI to the Subservicer or to any other sub-servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to TWRI and to such sub-servicer. The Agent hereby consents to the appointment of Concord as sub-servicer with respect to the Legacy Eagle Crest Receivables. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b), as long as TWRI or its Subsidiary or Affiliate is Servicer (or the Subservicer is servicing, administering or collecting the Legacy Eagle Crest Receivables), (i) TWRI shall be and remain primarily liable to the Agent, the Investor Agents and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder, and (ii) the Agent, the Investor Agents and the Purchasers shall be entitled to deal exclusively with TWRI in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent, the Investor Agents and the Purchasers shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person ~~or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable~~ other than TWRI in order for ~~the timely and complete performance of its duties and obligations pursuant~~ communication to the ~~terms hereof~~Servicer, ~~(ii)~~ the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and Subservicer or any other ~~transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such~~ sub-servicer ~~and~~ or other delegate with respect thereto to be accomplished. TWRI, at all times that it is the Servicer, shall be responsible for providing the Subservicer or any other sub-servicer or other delegate of the Servicer ~~alone, and none of~~ with any notice given to the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerServicer under this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ ----------------------- administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this -------- Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC O&M Medical is hereby designated as, and hereby agrees to perform ----------- the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Collateral Agent (with the consent or at the direction of the Required Financial Institutions) may at any time designate as Servicer any Person to succeed O&M Medical or any successor Servicer. O&M Medical will not resign as Servicer ~~an irrevocable power~~ without the prior written consent of ~~attorney~~the Collateral Agent and the Required Financial Institutions, provided that the consent of the Collateral -------- Agent and the Required Financial Institutions is not required for a merger of O&M Medical with ~~full power~~ another directly or indirectly wholly-owned Subsidiary of ~~substitution, coupled~~ the Parent (other than the Seller) so long as the conditions with ~~an interest,~~ respect to ~~take~~ such a merger set forth in the ~~name of the Borrower any and all steps which are necessary or advisable~~ proviso to ~~endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral.~~Section 12.1(a) have been satisfied. --------------- (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations hereunder to any subservicer (each, a "Sub-Servicer"); provided that, in each such ------------ delegation: (i) such Sub-Servicer shall agree in writing to perform the duties and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating remain primarily liable to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program~~ Collateral Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the performance of the duties and obligations so delegated, (iii) the Seller, the Collateral Agent, the Managing Agents and the Purchasers shall have the right to look solely to the Servicer for performance, and (iv) the terms of any agreement with any Sub-Servicer shall provide that the Collateral Agent, with the consent or at the direction of the Required Financial Institutions, may terminate such agreement upon the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the Servicer (and the Servicer shall provide appropriate notice to such Sub- Servicer). O&M Medical, at all times that it is the Servicer, shall be ~~deemed parties thereto~~ responsible for providing any sub-servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement. (c) So long as the Servicer is O&M Medical, (i) O&M Medical shall ~~have~~ be and remain primarily liable to the Collateral Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder; (ii) the Collateral Agent and the Purchasers shall be entitled to deal exclusively with O&M Medical in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder; and (iii) the Collateral Agent and the Purchasers shall not be required to give notice, demand or other communication to any ~~obligations, duties~~ Person other than O&M Medical in order for communication to the Servicer and its sub-servicer or ~~liabilities~~ other delegate with respect thereto to ~~any Approved Sub-servicer~~be accomplished.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Owens & Minor Inc/Va/)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC CH-23 is hereby designated as, and ~~hereby~~ xxxxxx agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. Agent (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the ~~Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments~~Purchasers) may, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the ~~Program Agent (~~Required Financial Institutions shall, at any time following the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date occurrence of a ~~Servicing Transfer. After a Servicing Transfer~~Collection Notice Event, ~~the replaced Servicer shall have no future obligations with respect~~ by notice to ~~the management, administration, servicing, custody or collection of the Pledged Contracts~~ CH-23 and the Sellers designate any Person to succeed CH-23 as Servicer or any successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged ContractsServicer. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (ga) Without the prior written consent of the Agent and each Managing Agent, ~~the Servicer shall~~ CH-23 will not ~~be permitted to~~ delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub~~the Originator, (ii) Cardinal, (iii) Cardinal Health 2, Inc., a Nevada corporation, (iv) Cardinal Health 7, LLC, (v) Xxxxxxx (in all respects until such time as the post-~~servicer~~ consummation covenant set forth at Section 2.5 of the Omnibus Agreement is satisfied, and thereafter, only with respect to the Legacy Receivables) and (yvi) ~~except~~ with respect to certain Receivables that are Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary ~~practices~~practices (each, a “Permitted Sub-Servicer”). ~~Notwithstanding the delegation by the~~ No Permitted Sub-Servicer of will further delegate to any other Person, other than another Permitted Sub-Servicer, any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by CH-23. If the Agent shall, in accordance with this Agreement, designate as Servicer to any Person ~~or the appointment of any Approved~~ other than CH-23, all duties and responsibilities theretofore delegated by CH-23 to each Permitted Sub-~~servicer pursuant~~ Servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~CH-23 and to the Sellers (and, at the Agent’s discretion, any Permitted Sub-Servicer). (b) Notwithstanding the foregoing subsection (b), (i) CH-23 shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with CH-23 in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to (but may at their sole option) give notice, demand or other communication to any Person other than CH-23 in order for communication to the ~~terms hereof~~Servicer and any of its Permitted Sub-Servicers with respect thereto to be accomplished. CH-23, ~~(ii)~~ at all times that it is the Servicer, shall be responsible for providing any Permitted Sub-Servicer or other delegate of the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) with any ~~sub-servicing agreement that may be entered into and any other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Cardinal Health Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Timken Corporation is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, at any time after the occurrence and during the continuation of an Amortization Event, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed The Timken Corporation or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer The Timken Corporation shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by The Timken Corporation. If at any time the Agent shall designate as Servicer to any Person or other than The Timken Corporation, all duties and responsibilities theretofore delegated by The Timken Corporation to Seller may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~The Timken Corporation and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) The Timken Corporation shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with The Timken Corporation in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than The Timken Corporation in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. The Timken Corporation, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Timken Co)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Penn Power is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may, upon the occurrence and during the continuance of an Amortization Event or during a Daily Reporting Period, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Penn Power or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Penn Power shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to ~~certain~~ Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding~~ Seller shall not be permitted to further delegate to any other Person any of the ~~delegation~~ duties or responsibilities of the Servicer delegated to it by Penn Power. If at any time the Agent shall designate as Servicer any Person other than Penn Power, all duties and responsibilities theretofore delegated by Penn Power to Seller may, at the reasonable discretion of the Agent, be terminated forthwith on prior written notice given by the Agent to Penn Power and to Seller. (c) Until such time as a Person other than Penn Power has been designated as Servicer hereunder, (i) Penn Power shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with Penn Power in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Penn Power in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Penn Power, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Pennsylvania Electric Co)

Designation of Servicer. (a) The servicing, administering and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by ~~the~~ such Person ("Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.01. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Agent gives notice ("Successor Notice") to ~~the Borrower and the Servicer~~ API of the designation of a new ~~Servicer as provided in Section 6.01(c) below~~Servicer, ~~DTCC~~ API is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms hereof. The ~~Borrower hereby grants~~ Agent agrees not to ~~Servicer an irrevocable power of attorney,~~ provide API with ~~full power of substitution, coupled with an interest, to take in~~ the ~~name of~~ Successor Notice until after the ~~Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right~~ occurrence of any ~~kind~~ Termination Event ("Servicer Transfer Event"), in ~~connection with~~ which case such Successor Notice may be given at any ~~Pledged Contract or other Collateral~~time in Agent's discretion. (b) ~~The~~ Upon API's receipt of a Successor Notice, API agrees that it will terminate its activities as Servicer ~~shall not resign from~~ hereunder in a manner which the ~~obligations and duties hereby imposed on it except upon~~ Agent believes will facilitate the ~~reasonable determination by the Servicer that (x)~~ transition of the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such ~~effect delivered~~ activities to the ~~Program Agent~~new Servicer, and the Agent (or its designee) shall assume each and all of API's obligations to service and administer such Receivables, on the terms and subject to the conditions herein set forth and API shall use its best efforts to assist the Agent (or its designee) in assuming such obligations. If API disputes the occurrence of a Servicer Transfer Event, API may take appropriate action to resolve such dispute; provided that API must terminate its activities hereunder as Servicer and allow the newly designated Servicer to perform such activities on the date provided by the Agent as described above, notwithstanding the commencement or continuation of any proceeding to resolve the aforementioned dispute. (c) ~~If a~~ Servicer ~~Default has occurred~~ may allow any Seller to service, administer and ~~is continuing the Program Agent shall, if requested~~ collect any Receivables generated by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial such Seller and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate may with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the ~~Majority Managing Agents~~Agent, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance subcontract with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements person for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, ~~custody~~ administering or ~~collection of~~ collecting the ~~Pledged Contracts and the successor Servicer shall have all of such obligations~~Pool Receivables, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees provided that, ~~upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above~~in each case, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the ~~timely and complete~~ performance of ~~its~~ the duties and obligations of Servicer pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Applied Power Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC HBI is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney~~Agent, with ~~full power of substitution, coupled with an interest, to take in~~ the ~~name~~ consent or at the direction of the ~~Borrower~~ Required Committed Purchasers, may at any time after the occurrence and ~~all steps which are necessary~~ during the continuance of a Servicer Default designate as Servicer any Person to succeed HBI or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Committed Purchasers, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer HBI shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by HBI. The Agent may with the consent of, and shall at the direction of the Required Committed Purchasers, at any time following the occurrence of a Servicer Default, designate as Servicer to any Person ~~or the appointment~~ other than HBI, whereupon all duties and responsibilities of ~~any Approved Sub~~HBI as Servicer hereunder shall cease and all duties and responsibilities theretofore delegated by HBI to Seller as sub-servicer ~~pursuant~~ may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~HBI and to Seller. (c) Notwithstanding the foregoing subsection (b), unless and until HBI is replaced as Servicer, (i) ~~the Servicer~~ HBI shall be and remain primarily liable ~~for the timely and complete performance of its duties and obligations pursuant~~ to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the ~~Liquidity Providers~~ Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Managing Agents, the Agent and the Purchasers shall be ~~deemed parties thereto~~ entitled to deal exclusively with HBI in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Managing Agents, the Agent and the Purchasers shall not be required to give notice, demand or ~~shall have~~ other communication to any ~~obligations, duties~~ Person other than HBI in order for communication to the Servicer and its sub-servicer or ~~liabilities~~ other delegate with respect thereto to be accomplished. HBI, at all times that it is the Servicer, shall be responsible for providing any sub-servicer or other delegate of the Servicer with any notice given to the Servicer under this Agreement and, if HBI is no longer the Servicer hereunder, any replacement Servicer shall be responsible for providing any such notice to any ~~Approved Sub~~sub-~~servicer~~servicer or delegate.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Hanesbrands Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~6. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time in its sole discretion terminate the Seller as Servicer on notice given by the Agent to the Seller and may designate as Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest,~~ any Person to ~~take in~~ succeed the ~~name of the Borrower~~ Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Agent that it has delegated, to the Transferor, as subservicer of the Servicer, certain of its duties and responsibilities as Servicer hereunder. The Seller hereby further advises the Purchasers and the Agent that the Transferor has delegated, to the Originator as subservicer of the Transferor, its duties and responsibilities as subservicer with respect to the Originator Receivables. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Agent and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its respective delegates and subservicers in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance~~ Servicer, shall be responsible for providing its delegates and subservicers with any notice given under this Agreement. The Agent may at any time in its sole discretion direct the Seller to replace any of its ~~duties hereunder permissible under applicable law. Any determination permitting~~ delegates or subservicers on notice given by the ~~resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered~~ Agent to the ~~Program Agent~~Seller and may designate as subservicer any Person to succeed such subservicer or any successor subservicer. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitationRequired Investors, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Transferor, and then such delegation shall be limited to the activities of Servicer hereunder, (xii) ~~an Approved Sub-servicer and (y) except with respect~~ the Transferor shall not be permitted to ~~certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ further delegate any of its duties or responsibilities as of the Servicer delegated to it by the Seller to any Person or other than the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, Originator and (iii) ~~any sub-servicing agreement that may~~ the Originator shall not be ~~entered into and~~ permitted to further delegate to any other ~~transactions~~ Person any of its duties or ~~services relating~~ responsibilities of the Servicer delegated to it by the Transferor. If the Agent shall designate as Servicer any Person other than the Seller in accordance with this Section 6.1, all duties and responsibilities theretofore delegated by the Seller to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone~~Transferor, and ~~none~~ by the Transferor to the Originator may, at the discretion of the ~~Lenders, the Program~~ Agent, be terminated forthwith on notice given by the ~~Managing Agents and~~ Agent to the ~~Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer~~Seller.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Bindley Western Industries Inc)

Designation of Servicer. ~~(a)~~ The servicing, administering ----------------------- and collection of the ~~Pledged Contracts~~ Lease Receivables shall be conducted by the ~~Person~~ Servicer so designated from time to time in accordance with this Section 6.01. The Agent ------------ hereby designates the Transferor as Servicer with respect to the Pledged Assets hereunder. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Agent gives notice to the ~~Borrower~~ Transferor and the Servicer of the designation of a new Servicer as ~~provided in Section 6.01(c)~~ described below, ~~DTCC is hereby designated as, and~~ the Transferor hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ parties hereto acknowledge that Trinity Capital Corporation and any other Person approved by the ~~name~~ Agent may perform certain of the ~~Borrower any~~ duties and ~~all steps which are necessary or advisable to endorse~~obligations of the Servicer as subservicers, ~~negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The~~ provided, that the Servicer shall ~~not resign from the obligations~~ -------- remain liable and ~~duties hereby imposed on it except upon the reasonable determination by the Servicer that (x)~~ responsible for the performance of ~~its~~ any such duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law~~obligations. ~~Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If~~ The Agent may at any time following a Servicer Default ~~has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the~~ designate as Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses Person (including ~~attorneys’ fees~~itself) ~~incurred in connection with transferring~~ to succeed the ~~Contract Files to the~~ Transferor or any successor Servicer, on the condition in each case that any such Person so designated shall agree to ~~reflect such succession as~~ perform the duties and obligations of the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicerhereof. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer Transferor agrees that, upon its ~~resignation or~~ replacement as Servicer ~~pursuant to Section 6.01(b) or (c) above~~by the Agent, it will take such actions as the Agent may reasonably require and otherwise cooperate with the ~~Borrower, the Program~~ Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer ~~hereunder,~~ hereunder including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the ~~Pledged Contracts~~ Lease Receivables and ~~other Collateral~~Related Security, (ii) transferring, promptly upon receipt, to the successor ~~Servicer,~~ Servicer any Collections or other amounts related to the ~~Pledged Contracts or other Collateral~~ Lease Receivables received by ~~such Servicer~~the Transferor, (iii) transferring to the successor Servicer all Records held by or under the control of ~~such Servicer~~ the Transferor and (iv) ~~permitting~~ following the replacement of the Transferor as Servicer, permit the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the ~~Pledged Contracts and other Collateral~~ Lease Receivables and the Records and ~~taking all actions necessary in its control to~~ permit the successor Servicer to use all computer software that may facilitate the Servicer’s 's access to and use of such ~~information and acting as data processing agent for such successor Servicer if requested~~information. Upon the ~~resignation or~~ replacement of ~~DTCC~~ the Transferor as Servicer, ~~DTCC~~ the Transferor shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such ~~resignation or~~ replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.

Appears in 1 contract

Samples: Lease Receivables Transfer Agreement (Steelcase Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~6.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC The Seller is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Co-Agents may at any time designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ succeed the ~~name of the Borrower~~ Seller or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) The Seller is permitted to delegate, and the Seller hereby advises the Purchasers and the Agents that it has delegated, to each of the Originators, as subservicers of the Servicer, certain of its duties and responsibilities as Servicer hereunder in respect of the Receivables transferred by such Originator to the Seller. Notwithstanding the foregoing, (i) the Seller shall ~~not resign from~~ be and remain primarily liable to the ~~obligations~~ Agents and the Purchasers for the full and prompt performance of all duties ~~hereby imposed on it except upon~~ and responsibilities of the ~~reasonable determination~~ Servicer hereunder and (ii) the Agents, the LC Issuer and the Purchasers shall be entitled to deal exclusively with the Seller in matters relating to the discharge by the Servicer ~~that (x) the performance~~ of its duties ~~hereunder is no longer permissible under applicable law~~ and ~~(y) there is no reasonable action which~~ responsibilities hereunder, and the Agents, the LC Issuer and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Seller in order for communication to the Servicer ~~could take~~ and its subservicer or other delegate in respect thereof to ~~make~~ be accomplished. The Seller, at all times that it is the ~~performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ Servicer, shall be ~~evidenced by an opinion of counsel to such effect delivered to the Program Agent~~responsible for providing its subservicer or other delegate with any notice given under this Agreement. (c) ~~If a Servicer Default has occurred and is continuing~~ Without the ~~Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy~~ prior written consent of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power each of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf Co-Agents of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitationBank Groups, (i) ~~assisting~~ the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than ~~(x) an Approved Sub-servicer~~ each Originator, and then such delegation shall be limited to the activities of Servicer hereunder as the same may relate to the Receivables originated by such Originator, and (yii) ~~except with respect~~ no Originator shall be permitted to ~~certain Charged-Off Contracts,~~ further delegate to ~~outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of~~ any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by the Seller. If at any time the Co-Agents of the Bank Groups shall designate as Servicer to any Person or other than the ~~appointment of any Approved Sub-servicer pursuant to this Section 6.01(g)~~Seller, ~~(i) the Servicer shall remain liable for the timely and complete performance of its~~ all duties and ~~obligations pursuant~~ responsibilities theretofore delegated by the Seller to the ~~terms hereof~~Originators may, ~~(ii)~~ at the ~~Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment~~ discretion of the ~~Program Agent and each Managing Agent~~Co-Agents of the Bank Groups, ~~to perform the servicing functions described herein, and (iii) any sub~~be terminated forthwith on notice given by such Co-~~servicing agreement that may be entered into and any other transactions or services relating~~ Agents to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.Seller. THIRD AMENDED AND RESTATED RPA

Appears in 1 contract

Samples: Receivables Purchase Agreement (Yrc Worldwide Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Parent is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time following the occurrence of a Servicer Default designate as Servicer any Person to succeed Parent or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ PROVIDED THAT the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ Parent may delegate, and Parent hereby advises the ~~obligations~~ Agent and ~~duties hereby imposed on~~ the Purchasers that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such other Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer~~ Parent shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the other Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Parent. If at any time following the occurrence of a Servicer Default the Agent shall designate as Servicer any Person other than Parent, all duties and responsibilities theretofore delegated by Parent to Seller or the other Originators may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to Parent and to Seller and the other Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) Parent shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with Parent in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Parent in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Parent, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Lafarge Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC MPC LP is hereby designated as, and hereby agrees to perform the duties and obligations of, ~~the~~ Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer~~ Administrative Agent may, at any time after the occurrence and during the continuance of an ~~irrevocable power of attorney~~Amortization Event, ~~with full power of substitution, coupled with an interest, to take in~~ at the ~~name~~ direction of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Required Managing Agents, ~~by notice in writing to the~~ designate as Servicer (~~a copy of which shall also be delivered~~ i) any Person to ~~the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions~~ succeed MPC LP or (ii) any successor to such ~~termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the~~ Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the that replaced ~~Servicer upon presentation of reasonable documentation of such costs and expenses~~MPC LP; provided, however, that ~~if the replaced Servicer fails to pay~~ in either case, no such ~~costs and expenses promptly, the successor Servicer~~ Person shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicera Marathon Competitor. (di) In Without the ~~event of the Servicer’s termination hereunder, the Program Agent, with the~~ prior written consent of the ~~Majority~~ Administrative Agent and the Required Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer MPC LP shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xA) ~~an Approved Sub-servicer~~ Seller; (B) one or more Affiliates of MPC LP, upon written notice to the Administrative Agent and the Managing Agents; and (yC) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Charged‑Off Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer~~ None of Seller of any such Affiliate shall be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of Servicer so delegated to it by MPC LP. If at any time the Administrative Agent shall designate as Servicer to any Person other than MPC LP, all duties and responsibilities theretofore delegated by MPC LP to Seller or any such Affiliate may, at the ~~appointment~~ discretion of the Administrative Agent, be terminated forthwith on notice given by the Administrative Agent to MPC LP and to Seller or such Affiliate, as applicable. (c) Notwithstanding any ~~Approved Sub-servicer~~ delegation of MPC LP’s duties as Servicer pursuant to ~~this Section 6.01(g~~the foregoing subsection (b)(i), (i) MPC LP shall be and remain primarily liable to the ~~Servicer shall remain liable~~ Administrative Agent and the Purchasers for the ~~timely~~ full and ~~complete~~ prompt performance of all duties and responsibilities of Servicer hereunder and (ii) the Administrative Agent and the Purchasers shall be entitled to deal exclusively with MPC LP in matters relating to the discharge by Servicer of its duties and ~~obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program~~ responsibilities hereunder. The Administrative Agent and ~~each Managing Agent~~the Purchasers shall not be required to give notice, demand or other communication to ~~perform the servicing functions described herein~~any Person other than MPC LP in order for communication to Servicer and its subservicer or other delegate with respect thereto to be accomplished. MPC LP, ~~and (iii) any sub-servicing agreement~~ at all times that ~~may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer~~ it is Servicer, shall be ~~deemed~~ responsible for providing any sub‑servicer or other delegate of Servicer with any notice given to ~~be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Sale Agreement (Marathon Petroleum Corp)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "Servicer") so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC SSI is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time after the occurrence of an Amortization Event that has not been waived in writing in accordance with the terms hereof, designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed SSI or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ SSI may delegate, and SSI hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agent that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take has delegated, to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shalleach Original Seller, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicer of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Original Seller. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Seller shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ SSI and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies or attorneys in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ SSI shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Seller other than to the Original Sellers. If at any time after the occurrence of an Amortization Event that has not been waived in writing in accordance with the terms hereof, the Agent shall designate as Servicer to any Person or other than SSI all duties and responsibilities theretofore delegated by Seller to SSI may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~SSI and to Seller. (c) Notwithstanding the foregoing subsection (b), (i) SSI shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with SSI in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than SSI in order for communication to the ~~terms hereof~~Servicer and its sub- servicer or other delegate with respect thereto to be accomplished. SSI, ~~(ii)~~ at all times that it is the Servicer, shall be responsible for providing any sub- servicer or other delegate of the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) with any ~~sub-servicing agreement that may be entered into and any other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (School Specialty Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Xxxxxxx is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Financial Institutions shall, at any time following the occurrence of a Collection Notice Event, by notice to Xxxxxxx and ~~all steps which are necessary~~ Seller designate any Person to succeed Xxxxxxx as Servicer or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer shall~~ Xxxxxxx will not ~~be permitted to~~ delegate any of its duties or responsibilities as Servicer to any Person other than (xi) Seller, (ii) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (iii) Cardinal, (iv) Cardinal West, Inc. a Nevada corporation and (yv) ~~except~~ with respect to certain Receivables that are Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary ~~practices~~practices (each, a “Permitted Sub-Servicer”). ~~Notwithstanding the delegation by the~~ No Permitted Sub-Servicer of will further delegate to any other Person, other than another Permitted Sub-Servicer, any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Xxxxxxx. If the Agent shall, in accordance with this Agreement, designate as Servicer to any Person ~~or the appointment of any Approved~~ other than Xxxxxxx, all duties and responsibilities theretofore delegated by Xxxxxxx to each Permitted Sub-~~servicer pursuant~~ Servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Xxxxxxx and to Seller (and, at the Agent’s discretion, any Permitted Sub-Servicer). (c) Notwithstanding the foregoing subsection (b), (i) Xxxxxxx shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Xxxxxxx in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to (but may at their sole option) give notice, demand or other communication to any Person other than Xxxxxxx in order for communication to the ~~terms hereof~~Servicer and any of its Permitted Sub-Servicers with respect thereto to be accomplished. Xxxxxxx, ~~(ii)~~ at all times that it is the Servicer, shall be responsible for providing any Permitted Sub-Servicer or other delegate of the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) with any ~~sub-servicing agreement that may be entered into and any other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Cardinal Health Inc)

Designation of Servicer. (a) The ~~servicing, administering and collection of the Pledged Contracts~~ Gross Amounts Payable shall be ~~conducted~~ ----------------------- serviced, administered and collected by the Person (the "Servicer") designated -------- to do so ~~designated~~ from time to time in accordance with this Section ~~6.01~~4.01. Until ~~the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of~~ ANLIC (Hawaii) designates a new Servicer ~~as provided in~~ pursuant to this Section ~~6.01(c) below~~4.01, ~~DTCC~~ SunAmerica Life Insurance Company is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. ~~The Borrower hereby grants~~ Anchor agrees to pay to the Initial Servicer ~~an irrevocable power~~ on demand all of ~~attorney~~its fees, ~~with full power of substitution, coupled with an interest, to take in the name of the Borrower any~~ costs and ~~all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind~~ expenses in connection with ~~any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x)~~ the performance of its ~~duties hereunder is no longer permissible under applicable law~~ obligation as Servicer. If any Servicer Default shall have occurred and be continuing, Anchor may designate as Servicer any Person (ya "Successor Servicer") ~~there is no reasonable action which~~ permitted hereby to succeed in ------------------ whole or in part the Initial Servicer ~~could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer~~ or any successor, if such Person shall be ~~evidenced~~ approved by ~~an opinion of counsel~~ ANLIC (Hawaii) (which approval not to ~~such effect delivered to the Program Agent. (c~~be unreasonably delayed or withheld) ~~If a Servicer Default has occurred~~ and ~~is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice~~ shall agree in writing (and obtain all necessary licenses and regulatory approvals) to perform the ~~Servicer (a copy~~ duties and obligations of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to ~~this Section 6.01, shall be paid by~~ the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior terms hereof to the ~~date of termination of the replaced Servicer (including~~ extent requested by Anchor and permitted by all ~~amounts expended by the replaced Servicer that would otherwise have been reimbursable~~ applicable laws, rules and regulations. If Anchor is unable to ~~it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with~~ obtain the consent of a third party to succeed the ~~Majority Managing Agents, shall appoint the Backup~~ Initial Servicer ~~as successor~~ or a Successor Servicer, ~~and~~ as the ~~successor Servicer shall accept its appointment by a written assumption in form acceptable to~~ case may be, as Servicer, ANLIC (Hawaii) hereby reserves the ~~Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased~~ right to act as Servicer in whole or in part in accordance with ~~Section 6.01(c),~~ the ~~Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor~~ preceding sentence. Notwithstanding anything to the ~~Servicer under this Agreement. Upon appointment,~~ contrary in any Reinsurance Document and without limiting the ~~successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities,~~ scope of duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, obligations that ~~the successor Servicer shall have (i) no liability with respect to any obligation which was required to~~ may be performed by a Successor Servicer, the ~~predecessor~~ Successor Servicer ~~prior~~ may from time to ~~the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction~~ time during regular business hours inspect records and oversee activities of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Initial Servicer in respect of its ~~role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition~~ performance of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due obligations under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing TransferReinsurance Documents, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (including but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.not

Appears in 1 contract

Samples: Servicing Agreement (Anchor National Life Insurance Co)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Xxxxxxx is hereby designated as, and ~~hereby~~ xxxxxx agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name~~ Agent (on behalf of the ~~Borrower~~ Purchasers) may, and at the direction of the Required Financial Institutions shall, at any time following the occurrence of a Collection Notice Event, by notice to Xxxxxxx and ~~all steps which are necessary~~ Seller designate any Person to succeed Xxxxxxx as Servicer or ~~advisable to endorse, negotiate or otherwise realize on~~ any ~~writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Without the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, ~~the Servicer shall~~ Xxxxxxx will not ~~be permitted to~~ delegate any of its duties or responsibilities as Servicer to any Person other than (xi) an ~~Approved Sub-servicer~~ Originator (with respect to Receivables originated by such Originator), (ii) Cardinal, (iii) Cardinal Health 2, Inc. a Nevada corporation, (iv) Cardinal Health 7, LLC and (yv) ~~except~~ with respect to certain Receivables that are Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary ~~practices~~practices (each, a “Permitted Sub-Servicer”). ~~Notwithstanding the delegation by the~~ No Permitted Sub-Servicer of will further delegate to any other Person, other than another Permitted Sub-Servicer, any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Xxxxxxx. If the Agent shall, in accordance with this Agreement, designate as Servicer to any Person ~~or the appointment of any Approved~~ other than Xxxxxxx, all duties and responsibilities theretofore delegated by Xxxxxxx to each Permitted Sub-~~servicer pursuant~~ Servicer may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Xxxxxxx and to Seller (and, at the Agent’s discretion, any Permitted Sub-Servicer). (c) Notwithstanding the foregoing subsection (b), (i) Xxxxxxx shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Xxxxxxx in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to (but may at their sole option) give notice, demand or other communication to any Person other than Xxxxxxx in order for communication to the ~~terms hereof~~Servicer and any of its Permitted Sub-Servicers with respect thereto to be accomplished. Xxxxxxx, ~~(ii)~~ at all times that it is the Servicer, shall be responsible for providing any Permitted Sub-Servicer or other delegate of the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) with any ~~sub-servicing agreement that may be entered into and any other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Cardinal Health Inc)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ "SERVICER") so designated from time to time in accordance with this Section ~~6.01~~8. 1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Wolverine Finance is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time following the occurrence of an Amortization Event designate as Servicer any Person to succeed Wolverine Finance or any successor Servicer ~~an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in~~ PROVIDED THAT the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other CollateralRating Agency Condition is satisfied. (b) ~~The Servicer shall not resign from~~ Wolverine Finance may delegate, and Wolverine Finance hereby advises the ~~obligations~~ Agent and ~~duties hereby imposed on~~ the Purchasers that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Liquidity Banks, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Wolverine Finance shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller, (ii) the Originators, and (yiii) ~~except~~ with respect to certain ~~Charged-Off Contracts~~Defaulted Receivables, to outside collection agencies in accordance with its customary practices. Neither Seller nor any Originator shall be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by Wolverine Finance. If at any time following an Amortization Event, the Agent shall designate as Servicer any Person other than Wolverine Finance, all duties and responsibilities theretofore delegated by Wolverine Finance to Seller or the Originators may, at the discretion of the Agent, be terminated forthwith on notice given by the Agent to Wolverine Finance and to Seller and the Originators. (c) Notwithstanding the ~~delegation~~ foregoing subsection (b): (i) Wolverine Finance shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to deal exclusively with Wolverine Finance in matters relating to the discharge by the Servicer of ~~any of~~ its duties and responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or ~~responsibilities as Servicer~~ other communication to any Person or other than Wolverine Finance in order for communication to the ~~appointment of any Approved Sub~~Servicer and its sub-servicer ~~pursuant~~ or other delegate with respect thereto to ~~this Section 6.01(g)~~be accomplished. Wolverine Finance, ~~(i)~~ at all times that it is the ~~Servicer~~ Servicer, shall ~~remain liable~~ be responsible for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (Wolverine Tube Inc)

Designation of Servicer. ~~(a)~~ The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Pool Receivables shall be conducted by the ~~Person~~ Servicer so designated hereunder from time to ~~time in accordance with this Section 6.01~~time. Until the ~~Program Agent, with the consent or at the direction of the Managing Agents,~~ Agent gives notice to the ~~Borrower and the Servicer~~ Seller of the designation of a new Servicer ~~as provided~~ in ~~Section 6.01(c) below~~accordance with the provisions of the next sentence, ~~DTCC~~ ACSC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The ~~Borrower hereby grants~~ Agent may, at any time after the occurrence and during the continuance of a Servicer Default, designate as Servicer any Person (including itself) to ~~Servicer an irrevocable power of attorney~~succeed ACSC or any successor Servicer, ~~with full power of substitution, coupled with an interest, to take in the name of the Borrower any~~ if such Person shall consent and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral. (b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered agree to the Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Noticeterms hereof. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the prior consent of the ~~Majority Managing Agents~~Agent, ~~make such arrangements~~ subcontract with any other Person for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, ~~custody~~ administration or collection of the ~~Pledged Contracts and the successor Servicer shall have all of~~ Pool Receivables. Any such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer subcontract shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent 's liability for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, and any such subcontract shall automatically terminate upon designation of a successor Servicer. The Servicer hereby appoints ACI as subservicer (ACI, in such capacity, the "Subservicer") to perform the servicing, administration and collections functions of the Servicer hereunder and with respect to the other Transaction Documents; provided that the foregoing designation of ACI as subservicer does not (i) extend to the amendment or modification of a Receivable in accordance with Section 6.02(c) or (ii) contravene or otherwise exceed or violate Section 6.09. In no instance will the ~~Servicer shall retain management information systems~~ servicing and ~~sufficient servicing capability~~subservicing hereunder be inconsistent with, or in violation of, the ~~reasonable judgment~~ terms and conditions of the ~~Program~~ Insurance Policy (and ACI shall continue its servicing and administration of the Insurance Policy). The Agent ~~and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating~~ hereby consents to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none~~ designation of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerACI as subservicer hereunder.

Appears in 1 contract

Samples: Receivables Purchase Agreement (AbitibiBowater Inc.)

Designation of Servicer. (a) The servicing, ~~administering~~ administration and collection of the ~~Pledged Contracts~~ Receivables shall be conducted by such Person (the ~~Person~~ “Servicer”) so designated from time to time in accordance with this Section ~~6.01~~8.1. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC Distributors is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms ~~hereof~~of this Agreement. The ~~Borrower hereby grants~~ Agent may at any time after the occurrence and during the continuance of a Potential Amortization Event designate as Servicer any Person to ~~Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower~~ succeed Distributors or any ~~and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral~~successor Servicer. (b) ~~The Servicer shall not resign from~~ Distributors may delegate, and Distributors hereby advises the ~~obligations~~ Purchasers and ~~duties hereby imposed on~~ the Agent that it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered has delegated, to the ~~Program Agent. (c) If a Servicer Default has occurred and is continuing the Program Agent shall~~other Originators, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf as sub-servicers of the Servicer, certain of its duties and responsibilities as ~~attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The~~ Servicer ~~agrees to cooperate with the Program Agent~~ hereunder in ~~effecting the termination~~ respect of the ~~responsibilities and rights of~~ Receivables originated by each such Originator. Without the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer. (d) In the event of the Servicer’s termination hereunder, the Program Agent, with the written consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts. (f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the ~~successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder~~Required Financial Institutions, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement. (g) Without the consent of each Managing Agent, the Servicer Distributors shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (xi) ~~an Approved Sub-servicer~~ Seller and (yii) ~~except~~ with respect to certain Charged-Off ~~Contracts~~Receivables, to outside collection agencies in accordance with its customary practices. ~~Notwithstanding the delegation by the Servicer of~~ Seller shall not be permitted to further delegate to any other Person any of ~~its~~ the duties or responsibilities of the Servicer delegated to it by Distributors. If at any time the Agent shall designate as Servicer to any Person other than Distributors, all duties and responsibilities theretofore delegated by Distributors to Seller or any Originator may, at the ~~appointment~~ discretion of ~~any Approved Sub-servicer pursuant~~ the Agent, be terminated forthwith on notice given by the Agent to ~~this Section 6.01(g~~Distributors and to Seller. In performing its obligations as Servicer or as Seller, Servicer and Seller may utilize employees or services of other Subsidiaries of Parent provided such use does not negatively impact the nonconsolidation opinion delivered in connection with the Receivables Sale Agreement. (c) Notwithstanding the foregoing subsection (b), (i) Distributors shall be and remain primarily liable to the Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers shall ~~remain liable for~~ be entitled to deal exclusively with Distributors in matters relating to the ~~timely and complete performance~~ discharge by the Servicer of its duties and ~~obligations pursuant~~ responsibilities hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than Distributors in order for communication to the ~~terms hereof~~Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. Distributors, ~~(ii)~~ at all times that it is the ~~Servicer~~ Servicer, shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) be responsible for providing any sub-~~servicing agreement that may be entered into and~~ servicer or other delegate of the Servicer with any ~~other transactions or services relating~~ notice given to the ~~Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the~~ Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicerunder this Agreement.

Appears in 1 contract

Samples: Receivables Purchase Agreement (SCP Pool Corp)

Common use of Designation of Servicer Clause in Contracts