Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. (b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation: (i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans; (ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request; (iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer; (iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request; (v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent; (vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan; (vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto; (viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and (ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and (c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 19 contracts
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Majority Lenders or the Administrative Facility Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Lender, the Facility Agent or the Administrative AgentRating Agency, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Lender, the Facility Agent or the Administrative Agent Rating Agency from time to time reasonably requestrequests;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Facility Agent;
(vi) complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; andhereunder or (D) the Required Facility Rating;
(ix) notifying the BorrowerBorrower and each Lender, each Managing Agent and the Administrative Agent Rating Agency of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect;
(x) promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower;
(xi) making applications for credit ratings and credit estimates as contemplated by this Agreement;
(xii) making determinations on behalf of the Borrower to accept the transfer of Loans pursuant to the Purchase Agreement and to dispose of any Loans when and as permitted under this Agreement; and
(xiii) making determinations on behalf of the Borrower to request and from time to time prepay Advances hereunder in accordance with the terms hereof.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Facility Agent, the Securities Custodian and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) The Borrower and the Facility Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Facility Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Required Lenders and satisfaction of the Rating Condition, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this subsection; provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Prospect Capital Corp), Loan and Servicing Agreement (Prospect Capital Corp), Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such actions other action as may be necessary or advisable appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to service, administer and collect Transferred Loans from time the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to time on behalf the Lockbox Account or the Credit Card Account in respect of the Borrower Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof;
(viii) use reasonable best efforts to enforce the Borrowerpurchase and substitution obligations of the Club Originator under the Purchase Agreement and the Depositor under the Sale Agreement with respect to breaches of representations and warranties related to the Timeshare Loans;
(ix) refrain from modifying, waiving or amending the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default on such Timeshare Loan has occurred or is imminent and such modification, amendment or waiver will not (i) materially alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on the Noteholders, (iii) adversely affect the Timeshare Property underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant a single extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (A) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, the Servicer shall not be permitted to modify, waive or amend the terms of any Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such Timeshare Loan and the Cut-Off Date Loan Balances of all other Timeshare Loans for which the Servicer has modified, waived or amended the terms thereof exceeds 1% of the Aggregate Initial Loan Balance;
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (ix) above;
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s agentreasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee;
(xii) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement; and
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer shall, in accordance with the Servicing Standard, promptly institute collection procedures, which may include, but is not limited to, cancellation, forfeiture, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent.
(b) The duties of Servicer shall, at least once each week, for each applicable Credit Card Timeshare Loan, deposit to the Credit Card Account, the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor (such amount, the “Servicer Credit Card Processing Cost”) and shall immediately cause all amounts on deposit therein to be transferred to the Lockbox Account. The Agent may, at any time direct the Indenture Trustee to cause the Lockbox Bank to restrict the Servicer, as ’s access and rights to the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims toCredit Card Account, and post-billing liaison withshall instruct the Indenture Trustee to instruct the Lockbox Bank to sweep all amounts on deposit in the Credit Card Account to be transferred to the Lockbox Account on a daily basis. The Servicer hereby agrees that if such direction is given by the Agent, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Transferred Loans Credit Card Account.
(c) For so long as Bluegreen or any of its Affiliates controls the Resorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and providing such reports condition (ordinary wear and tear excepted).
(d) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Borrower, the Managing Agents and the Administrative Agent in respect Noteholders representing a majority of the servicing Outstanding Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Association for a Resort, and Bluegreen or an Affiliate thereof is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Noteholders, then it may only be amended or modified with the prior written consent of the Transferred Loans Noteholders representing a majority of the Outstanding Note Balance of each Class of Notes, which consent shall not be unreasonably withheld or delayed and (including information relating ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely affect the Noteholders, Bluegreen shall send a copy of such amendment or modification to the Agent with the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(e) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its performance under this Agreement) as may be required hereunder or as Affiliates which materially adversely affects the BorrowerIssuer’s interest in such Timeshare Loan, any Managing Agent Bluegreen shall, within the earlier to occur of ten Business Days after such attachment or the Administrative Agent may respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably request;
acceptable to the Indenture Trustee or (iii) maintaining provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(f) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and implementing administrative (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and operating procedures defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all respects, and shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(g) Except as contemplated by the Transaction Documents, the Servicer shall not, and shall not permit the Club Managing Entity to, encumber, pledge or otherwise xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall cause the Club Managing Entity, booksto use commercially reasonable efforts to keep the Reservation System operational, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Club the use of, and access to, the Reservation System in accordance with the terms of the Club Management Agreement. Notwithstanding the foregoing, should the Club Managing Entity determine that it is desirable to replace the existing hardware and software related to the Reservation System, it will be allowed to enter into a lease or finance arrangement in connection with the lease or purchase of such hardware and software.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor h) The Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying comply in all material respects with the Credit and Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each Transferred Timeshare Loan;. The Servicer shall (i) notify the Agent ten days prior to any material amendment or change to the Collection Policy or the Credit Policy and (ii) obtain the Agent’s prior written consent (which consent will not be unreasonably withheld or delayed) if such amendment or change has a material and adverse affect on the Noteholders; provided, that the Servicer may immediately implement any changes (and provide notice to the Agent subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer; and provided, further, that the Servicer shall deliver a copy of any non-material amendments or changes to the Collection Policy or the Credit Policy to the Agent with the Monthly Report to be delivered subsequent to the effective date of such amendments or changes.
(viii) complying The Servicer shall comply in all material respects with all Applicable Laws the terms of the Timeshare Loans.
(j) In connection with the Servicer’s duties under (vii) and (xiii) of subsection (a) above, the Servicer will undertake such duties in the ordinary course in a manner similar and consistent with (or better than) the manner in which the Servicer performs any such duties with respect to it, Timeshare Loans owned by it or its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderAffiliates.
Appears in 3 contracts
Samples: Indenture (Bluegreen Corp), Third Amended and Restated Indenture (Bluegreen Corp), Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable commercially reasonable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of payment invoices and/or claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Investment Policy in regard to the servicing of each Transferred LoanLoan and providing prompt written notice to the Administrative Agent, prior to the effective date thereof, of any proposed changes in the Investment Policy;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and the Related Property, Collections and Loan Documents with respect theretothereto or any part thereof;
(viii) from time to time, but not less frequently than monthly, reviewing each Transferred Loan and assigning a Risk Rating thereto in accordance with the Investment Policy based on the characteristics and performance of such Transferred Loan as of the time of such review;
(ix) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility collectability of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ixx) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened in writing to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect;
(xi) selecting Permitted Investments in which amounts on deposit in the Collection Account shall be invested in accordance with the terms and subject to the conditions specified in Section 2.9(b) and the Collection Account SACA;
(xii) maintaining the first priority, perfected security interest of the Administrative Agent, as agent for the Secured Parties, in the Collateral;
(xiii) so long as the Borrower or one of its Affiliates is the Servicer and to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, maintaining the Loan File(s) with respect to Loans included as part of the Collateral; provided that upon the occurrence and during the continuance of an Event of Default the Administrative Agent may request the Loan File(s) to be sent to the Administrative Agent or its designee; and
(xiv) so long as the Borrower or one of its Affiliates is the Servicer, to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, with respect to each Loan included as part of the Collateral, making the Loan File available for inspection by the Administrative Agent, upon reasonable advance notice, at the offices of the Servicer during normal business hours.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) In performing its duties, the Servicer shall perform its obligations in accordance with Applicable Law, the terms of this Agreement, the other Transaction Documents, all customary and usual servicing practices for loans like the Loan and, to the extent consistent with the foregoing, with commercially reasonable care (i) using a similar degree of care, skill and attention as it employs with respect to similar collateral that it manages for itself and its Affiliates having similar investment objectives and restrictions and (ii) in a manner consistent with customary standards, policies and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Loans (the “Servicing Standard”).
(e) Notwithstanding anything to the contrary contained herein, the exercise by the Administrative Agent or the Secured Parties of their rights hereunder (including, but not limited to, the delivery of a notice of the termination of the Servicer pursuant to Section 7.19), shall not release the Servicer, the Collateral Custodian or the Borrower from any of their duties or responsibilities with respect to the Collateral except to the extent provided in Section 7.19. The Secured Parties, the Administrative Agent and the Successor Servicer shall not have any obligation or liability with respect to any Collateral, other than to use commercially reasonable care in the custody and preservation of collateral in such party’s possession, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder (other than the Successor Servicer, if it is the successor Servicer appointed by Administrative Agent pursuant to Section 7.19 and subject to Section 7.19).
(f) Any payment by an Obligor in respect of any Indebtedness owed by it to the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract (including by the Loan Documents) or law and unless otherwise instructed by the Administrative Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
(g) It is hereby acknowledged and agreed that, in addition to acting in its capacity as Servicer pursuant to the terms of this Agreement, the Servicer may engage in other business and render other services outside the scope of its capacity as Servicer (including acting as a lender with respect to Loan Documents). It is hereby further acknowledged and agreed that such other activities shall in no way whatsoever alter, amend or modify any of the Servicer’s rights, duties or obligations under the Transaction Documents (including, without limitation, its duty to comply in all material respects with the Investment Policy).
Appears in 3 contracts
Samples: Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Collateral Debt Obligations and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Collateral Debt Obligations from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansCollateral Debt Obligations;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans Collateral Debt Obligations and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans Collateral Debt Obligations (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans Collateral Debt Obligations in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans Collateral Debt Obligations (including, without limitation, records adequate to permit the identification of each new Transferred Loan Collateral Debt Obligation and all Collections of and adjustments to each existing Transferred LoanCollateral Debt Obligation); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent Agent, the Trustee or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Agent, the Trustee or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan Collateral Debt Obligation clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Collateral Debt Obligation is owned by the Borrower and pledged to the Administrative AgentTrustee for the benefit of the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy Servicing Standards in regard to each Transferred LoanCollateral Debt Obligation;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect theretoCollateral, except where failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Collateral Debt Obligations on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral CustodianTrustee) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian Trustee in the Transferred LoansCollateral Debt Obligations, (B) the collectibility of any Transferred LoanCollateral Debt Obligation, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred LoanCollateral Debt Obligation; or (2B) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian Trustee shall not have any obligation or liability with respect to any Transferred LoansCollateral Debt Obligations, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Credit Agreement (GSC Investment Corp.), Credit Agreement (GSC Investment Corp.)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all such actions as may be necessary or advisable to service, administer the following servicing and collect Transferred Loans from time to time on behalf of collection activities in accordance with the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitationServicing Standard:
(i) preparing perform standard accounting services and submitting of claims to, and post-billing liaison with, Obligors on Transferred general record keeping services with respect to the Timeshare Loans;
(ii) maintaining all necessary Servicing Records with respect respond to telephone or written inquiries of Obligors concerning the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably requestTimeshare Loans;
(iii) maintaining keep Obligors informed of the proper place and implementing administrative method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collection and operating procedures to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means, including but not limited to (A) mailing of routine past due notices, (B) preparing and mailing collection letters, (C) contacting delinquent Obligors by telephone to encourage payment, and (D) mailing of reminder notices to delinquent Obligors;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such other action as may be necessary or appropriate in the discretion of the Servicer for the purpose of collecting and transferring to the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) remarket Timeshare Property;
(viii) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans;
(ix) dispose of Timeshare Property related to the Timeshare Loans whether following repossession, foreclosure or otherwise;
(x) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the purchase and substitution obligation of the Seller under the Sale Agreement;
(xi) not modify, waive or amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default has occurred or is imminent and such modification, amendment or waiver does not (i) materially alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse effect on Noteholders, (iii) adversely affect the Timeshare Property underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (A) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not (1) grant more than one extension per calendar year with respect to a Timeshare Loan or (2) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year;
(xii) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property; provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (xi) above;
(xiii) [Reserved];
(xiv) deliver such information and data to the Back-Up Servicer as is required pursuant to Section 5.16 hereof; and
(xv) (A) use commercially reasonable best efforts to cause all the timeshare or fractional interest resorts operated by DRFS or its Affiliates to have property damage insurance coverage for the full replacement value thereof or, if not available on commercially reasonable terms, the maximum amount available on commercially reasonable terms, as determined in accordance with the Servicing Standard and (B) to the extent that there is any reduction in the policy limits of such coverage or the Servicer has determined, in accordance with the Servicing Standard, that such coverage is not available on commercially reasonable terms, provide written notice to the Issuer and each of the Rating Agencies within five Business Days of such determination.
(b) For so long as an Affiliate of the Servicer controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain our cause to maintain each Resort in good repair, working order and condition (ordinary wear and tear excepted).
(c) For so long as an Affiliate of the Servicer controls the Resort Association for a Resort, and an Affiliate of the Servicer is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Noteholders, then it may only be amended or modified with the written consent of Holders representing at least 51% of the then Outstanding Note Balance of each Class of Notes and (ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely affect the Noteholders, the Servicer shall send a copy of such amendment or modification (i) to the Rating Agencies and (ii) to the Indenture Trustee as part of the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(d) In the event any Lien attaches to any Timeshare Loan or related collateral from any Person claiming from and through an Affiliate of the Servicer which materially adversely affects the Issuer’s interest in such Timeshare Loan, the Servicer shall, within the earlier to occur of ten Business Days after receiving notice of such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(e) The Servicer shall: (i) promptly notify the Indenture Trustee and the Rating Agencies of (A) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all respects, and shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(f) The Servicer shall not, and shall not permit any Person to, encumber, pledge or otherwise xxxxx x Xxxx (other than in the normal course of business) or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall use commercially reasonable efforts to keep the Reservation System operational, books, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Collections the use of, and access to, the Reservation System.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor g) The Servicer shall only be required notify the Indenture Trustee ten days prior to recreate the Servicing Records of each prior Servicer any material amendment or change to the extent Collection Policy and shall provide written notice of such records have been amendment to the Rating Agencies. The Servicer shall deliver a copy of any non-material amendments or changes to the Collection Policy (i) to the Rating Agencies and (ii) to the Indenture Trustee as part of the Monthly Report to be delivered subsequent to it the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii), (viii) and (ix) in subsection (a) above, the Servicer will, as soon as practical, undertake such duties in the ordinary course in a format reasonably acceptable manner similar and consistent with (or better than) the manner in which the Servicer sells or markets other Timeshare Property it or its Affiliates owns. In addition, in connection with the Servicer’s duties under (vii), (viii) and (ix) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Property related to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is Timeshare Loans owned by the Borrower Issuer before it remarkets and pledged sells Timeshare Property of the same type owned by the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in receivables securitizations).
(i) To the extent that any Timeshare Property related to a Defaulted Timeshare Loan is remarketed, the Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(j) The Servicer shall provide written notice to the Administrative Agent;Rating Agencies of any material modification, waiver or amendment of the terms of any Timeshare Loan effected pursuant to Section 5.03(a)(xi) hereof.
(vik) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to itThe Servicer shall, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the BorrowerIssuer, Lenders, each Hedge Counterparty maintain the perfection and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests priority of the Borrowersecurity interest Granted hereunder and, Lendersto the extent transfers under the Sale Agreement are characterized as a loan, each Hedge Counterparty and the Collateral Custodian security interest Granted therein.
(l) The Issuer shall provide written notice to the Indenture Trustee of any change in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability owner of the Servicer to perform its obligations hereunder; and
(ix) notifying beneficial interests in the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderIssuer.
Appears in 2 contracts
Samples: Indenture (Diamond Resorts International, Inc.), Indenture (Diamond Resorts International, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others and in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, the Lender Group and the Collateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent the Agent, or the Administrative Agent Collateral Custodian may from time to time reasonably request, so long as such information is in the possession of the Servicer or can be obtained with neither undue burden nor expense;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business business, and its properties and all Transferred Loans and Collections with respect theretoCollections;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty Borrower and the Collateral CustodianAgent,) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is pending or is is, to the knowledge of the Servicer, threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse EffectChange; and
(c) The Borrower and Servicer hereby acknowledge that none of the Secured PartiesAgent or the Lender Group, the Administrative Agent and nor the Collateral Custodian Custodian, shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Hercules Capital, Inc.), Sale and Servicing Agreement (Hercules Capital, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be reasonably necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent each Lender in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing the Agent or the Administrative Agent and each Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, provided that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, each Lender, the Trustee and the Backup Servicer, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent Agent, each Lender and the Trustee may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative AgentTrustee on behalf of the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodianother Secured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing the Agent and the Administrative Agent each Lender of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and.
(c) The Borrower and Servicer hereby acknowledge that none of the Agent, any other Secured Parties, Party or the Administrative Agent and the Collateral Custodian Trustee shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Loan Funding and Servicing Agreement (Kohlberg Capital CORP), Loan Funding and Servicing Agreement (Kohlberg Capital CORP)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Deal Agent and each Lender Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Deal Agent or and each Lender Agent and the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Deal Agent or and the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Deal Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral CustodianSecured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Deal Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Deal Agent, any other Secured Parties, the Administrative Agent and Party or the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD), Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such actions other action as may be necessary or advisable appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to service, administer and collect Transferred Loans from time the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to time on behalf the Lockbox Account in respect of the Borrower Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and remarket such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof;
(viii) use reasonable best efforts to enforce the Borrowerpurchase and substitution obligations of the Club Originator under the Transfer Agreement or the Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Timeshare Loans;
(ix) refrain from modifying, waiving or amending the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default on such Timeshare Loan has occurred or is imminent and such modification, amendment or waiver will not (A) materially alter the interest rate on or the principal balance of such Timeshare Loan, (B) shorten the 35 final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse effect on the Noteholders, (C) adversely affect the Timeshare Property underlying such Timeshare Loan or (D) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant a single extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion determines that (x) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (y) the value of such Timeshare Loan will be enhanced by such extension; provided, further, the Servicer shall not be permitted to modify, waive or amend the terms of any Timeshare Loan (other than a Force Majeure Loan) if the sum of the Cut-Off Date Loan Balance of such Timeshare Loan and the Cut-Off Date Loan Balances of all other Timeshare Loans (other than Force Majeure Loans) for which the Servicer has modified, waived or amended the terms thereof since the Closing Date exceeds 3.00% of the Aggregate Closing Date Collateral Balance; provided, further, that the Servicer may determine that a Timeshare Loan is a Force Majeure Loan and may defer loan payments in accordance with the Servicing Standard, but in no event, more than 2 months, provided, that the Servicer may not, without having first received confirmation from each Rating Agency that such action would not result in a qualification downgrade or withdrawal of any rating assigned to the Notes, determine that a Timeshare Loan is a Force Majeure Loan if such determination would cause the aggregate Loan Balance of all Force Majeure Loans to exceed 5.00% of the Aggregate Loan Balance;
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in Section 5.3(a)(ix) hereof;
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s agentreasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee;
(xii) deliver such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer 36 shall, in accordance with the Servicing Standard and the Collection Policy, promptly institute collection procedures, which may include, but is not limited to, cancellation, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent; and
(xiv) with respect to Timeshare Loans related to Timeshare Properties located in the State of Louisiana, the Servicer shall take such action as may be necessary in the applicable jurisdiction to avoid the lapse of a related Mortgage while any such Timeshare Loan remains outstanding.
(b) The duties Servicer may not sell any of the ServicerForeclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, for each applicable Credit Card Timeshare Loan, pay the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor.
(d) For so long as Bluegreen or any of its Affiliates controls the BorrowerResorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager and the related management contract for each Resort at all times shall be reasonably satisfactory to the Noteholders representing at least 66‑2/3% of the Adjusted Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Timeshare Association for a Resort, and Bluegreen or an Affiliate thereof is the manager, the related management contract may be amended or modified in a manner that reasonably may be determined to have a material adverse effect on the Noteholders only with the prior written consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, which consent shall not be unreasonably withheld or delayed.
(f) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its Affiliates which materially adversely affects the Issuer’s agentinterest in such Timeshare Loan, shall includeBluegreen shall, without limitation:
within the earlier to occur of ten Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (i) preparing and submitting cause such Lien to be released of claims torecord, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the 37
(g) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Transferred Loans Servicer or one of its Affiliates, appear in and providing such reports to the Borrowerdefend, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrowerat Servicer’s expense, any Managing Agent such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Administrative Agent may reasonably request;
Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(h) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit the Club Managing Entity to, encumber, pledge or otherwise xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall cause the Club Managing Entity, booksto use commercially reasonable efforts to keep the Reservation System operational, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Club the use of, and access to, the Reservation System in accordance with the terms of the Club Management Agreement. Notwithstanding the foregoing, should the Club Managing Entity determine that it is desirable to replace the existing hardware and software related to the Reservation System, it will be allowed to enter into a lease or finance arrangement in connection with the lease or purchase of such hardware and software.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor i) The Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying comply in all material respects with the Credit and Collection Policy in regard effect on the Closing Date (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Transferred Loan;Class of Notes) and with the terms of the Timeshare Loans.
(viij) complying in all material respects with all Applicable Laws with respect At the written request of a Rating Agency, the Servicer shall prepare and deliver to itsuch Rating Agency, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation updated replines in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian format set forth in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderOffering Circular.
Appears in 2 contracts
Samples: Indenture (BBX Capital Corp), Indenture (BFC Financial Corp)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such actions other action as may be necessary or advisable appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to service, administer and collect Transferred Loans from time the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to time on behalf the Lockbox Account in respect of the Borrower Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof;
(viii) use reasonable best efforts to enforce the Borrowerpurchase and substitution obligations of the Club Originator under the Transfer Agreement or the Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Timeshare Loans;
(ix) refrain from modifying, waiving or amending the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default on such Timeshare Loan has occurred or is imminent and such modification, amendment or waiver will not (A) materially alter the interest rate on or the principal balance of such Timeshare Loan, (B) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse effect on the Noteholders, (C) adversely affect the Timeshare Property underlying such Timeshare Loan or (D) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant a single extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion determines that (x) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (y) the value of such Timeshare Loan will be enhanced by such extension; provided, further, the Servicer shall not be permitted to modify, waive or amend the terms of any Timeshare Loan (other than a Force Majeure Loan) if the sum of the Cut-Off Date Loan Balance of such Timeshare Loan and the Cut-Off Date Loan Balances of all other Timeshare Loans (other than Force Majeure Loans) for which the Servicer has modified, waived or amended the terms thereof since the Closing Date exceeds 3.00% of the Aggregate Closing Date Collateral Balance; provided, further, that the Servicer may determine that a Timeshare Loan is a Force Majeure Loan and may defer loan payments in accordance with the Servicing Standard, but in no event, more than 2 months, 35
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in Section 5.3(a)(ix) hereof;
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s agentreasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee;
(xii) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer shall, in accordance with the Servicing Standard and the Collection Policy, promptly institute collection procedures, which may include, but is not limited to, cancellation, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent; and
(xiv) with respect to Timeshare Loans related to Timeshare Properties located in the State of Louisiana, the Servicer shall take such action as may be necessary in the applicable jurisdiction to avoid the lapse of a related Mortgage while any such Timeshare Loan remains outstanding.
(b) The duties Servicer may not sell any of the ServicerForeclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, for each applicable Credit Card Timeshare Loan, pay the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor.
(d) For so long as Bluegreen or any of its Affiliates controls the Resorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager, the related management contract and any master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Noteholders representing at least 66‑2/3% of the Adjusted Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Timeshare Association for a Resort, and Bluegreen or an Affiliate thereof is the manager, the related management contract and master marketing and sale contract, if applicable, may be amended or modified in a manner that reasonably may be determined to have a material adverse effect on the Noteholders only with the prior written consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, which consent shall not be unreasonably withheld or delayed.
(f) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Bluegreen shall, within the earlier to occur of ten Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the BorrowerIndenture Trustee may reasonably require.
(g) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s agentability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all respects, and shall includecause all Affiliates to comply in all respects, without limitation:with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(h) Except as contemplated by the Transaction Documents, the Servicer shall not, and shall not permit the Club Managing Entity to, encumber, pledge or otherwise grant a 37
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor The Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying comply in all material respects with the Credit and Collection Policy in regard effect on the Closing Date (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Transferred Loan;Class of Notes) and with the terms of the Timeshare Loans.
(viij) complying in all material respects with all Applicable Laws with respect At the written request of a Rating Agency, the Servicer shall prepare and deliver to itsuch Rating Agency, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation updated replines in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian format set forth in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderOffering Circular.
Appears in 2 contracts
Samples: Indenture (BBX Capital Corp), Indenture (BFC Financial Corp)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all such actions as may be necessary or advisable to service, administer the following servicing and collect Transferred Loans from time to time on behalf of collection activities in accordance with the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitationServicing Standard:
(i) preparing perform standard accounting services and submitting of claims to, and post-billing liaison with, Obligors on Transferred general record keeping services with respect to the Timeshare Loans;
(ii) maintaining all necessary Servicing Records with respect respond to telephone or written inquiries of Obligors concerning the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably requestTimeshare Loans;
(iii) maintaining keep Obligors informed of the proper place and implementing administrative method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collection and operating procedures to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means, including but not limited to (A) mailing of routine past due notices, (B) preparing and mailing collection letters, (C) contacting delinquent Obligors by telephone to encourage payment, and (D) mailing of reminder notices to delinquent Obligors;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such other action as may be necessary or appropriate in the discretion of the Servicer for the purpose of collecting and transferring to the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) remarketing Timeshare Property;
(viii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans;
(ix) disposing of Timeshare Property related to the Timeshare Loans whether following repossession, foreclosure or otherwise;
(x) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the purchase and substitution obligation of the Seller under the Sale Agreement;
(xi) not modify, waive or amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default has occurred or is imminent and such modification, amendment or waiver does not (i) materially alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on Noteholders, (iii) adversely affect the Timeshare Property underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (A) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not (1) grant more than one extension per calendar year with respect to a Timeshare Loan or (2) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year;
(xii) working with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property; provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (xi) above;
(xiii) deliver such information and data to the Back-Up Servicer as is required pursuant to Section 5.16 hereof; and
(xiv) (A) use commercially reasonable best efforts to cause all the timeshare or fractional interest resorts operated by DRFS or its Affiliates to have property damage insurance coverage for the full replacement value thereof or, if not available on commercially reasonable terms, the maximum amount available on commercially reasonable terms, as determined in accordance with the Servicing Standard and (B) to the extent that there is any reduction in the policy limits of such coverage or the Servicer has determined, in accordance with the Servicing Standard, that such coverage is not available on commercially reasonable terms, provide written notice to the Issuer and each of the Rating Agency within five Business Days of such determination.
(b) For so long as an Affiliate of the Servicer controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain our cause to maintain each Resort in good repair, working order and condition (ordinary wear and tear excepted).
(c) For so long as an Affiliate of the Servicer controls the Resort Association for a Resort, and an Affiliate of the Servicer is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Noteholders, then it may only be amended or modified with the written consent of Holders representing at least 51% of the then Outstanding Note Balance of each Class of Notes and (ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely affect the Noteholders, the Servicer shall send a copy of such amendment or modification (i) to the Rating Agency and (ii) to the Indenture Trustee as part of the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(d) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through an Affiliate of the Servicer which materially adversely affects the Issuer’s interest in such Timeshare Loan, the Servicer shall, within the earlier to occur of ten Business Days after receiving notice of such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(e) The Servicer shall: (i) promptly notify the Indenture Trustee and the Rating Agency of (A) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all respects, and shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(f) The Servicer shall not, and shall not permit any Person to, encumber, pledge or otherwise xxxxx x Xxxx (other than in the normal course of business) or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall use commercially reasonable efforts to keep the Reservation System operational, books, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Collections the use of, and access to, the Reservation System.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor g) The Servicer shall only be required notify the Indenture Trustee ten days prior to recreate the Servicing Records of each prior Servicer any material amendment or change to the extent such records Credit and Collection Policy, and shall have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to received written confirmation from the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect Rating Agency that such Transferred Loan is owned by amendment or change will not cause the Borrower and pledged Rating Agency to reduce, qualify or withdraw the Administrative Agent;
(vi) complying in all then current rating assigned to any Class of Notes. The Servicer shall deliver a copy of any non-material respects with amendments or changes to the Credit and Collection Policy in regard (i) to each Transferred Loan;the Rating Agency and (ii) to the Indenture Trustee as part of the Monthly Report to be delivered subsequent to the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii) complying in all material respects with all Applicable Laws with respect to it), its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence(ix) in subsection (a) above, rightsthe Servicer will, licensesas soon as practical, franchises and privileges as a corporation undertake such duties in the jurisdiction ordinary course in a manner similar and consistent with (or better than) the manner in which the Servicer sells or markets other Timeshare Property it or its Affiliates owns. In addition, in connection with the Servicer’s duties under (vii), (viii) and (ix) of its organizationsubsection (a) above, the Servicer agrees that it shall remarket and qualifying sell the Timeshare Property related to Timeshare Loans owned by the Issuer before it remarkets and remaining qualified sells Timeshare Property of the same type owned by the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in good standing as receivables securitizations).
(i) To the extent that any Timeshare Property related to a foreign corporation and qualifying Defaulted Timeshare Loan is remarketed, the Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(j) The Servicer shall provide written notice to and remaining authorized and licensed the Rating Agency of any material modification, waiver or amendment of the terms of any Timeshare Loan effected pursuant to perform obligations as Section 5.03(a)(xi) hereof.
(k) The Servicer (including enforcement of collection of Transferred Loans shall, on behalf of the BorrowerIssuer, Lenders, each Hedge Counterparty maintain the perfection and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests priority of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer security interest Granted hereunder.
Appears in 2 contracts
Samples: Indenture (Diamond Resorts Parent, LLC), Indenture (Diamond Resorts Parent, LLC)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Notes Receivable and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Notes Receivable from time to time on behalf of the Borrower Buyer and as the BorrowerBuyer’s agentagent in accordance with the Accepted Servicing Practices. The Backup Servicer shall conduct the following activities:
(i) on a monthly basis, the Backup Servicer shall accept the delivery from the Servicer of the electronic transmission sent by the Servicer pursuant to Section 4.02(b);
(ii) the Backup Servicer will ensure that such transmission is readable and will retain such information until it receives the next transmission from the Servicer. The Backup Servicer shall not be required to review the information set forth in any such electronic transmission. The Backup Servicer acknowledges that prior to the date hereof it performed a review of the Servicer and its servicing practices.
(b) The duties of the Servicer, as the BorrowerBuyer’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansNotes Receivable;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans Notes Receivable and providing such reports to the BorrowerBuyer, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans Notes Receivable (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Buyer or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans Notes Receivable in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans Notes Receivable (including, without limitation, records adequate to permit the identification of each new Transferred Loan Note Receivable and all Collections of and adjustments to each existing Transferred LoanNote Receivable); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the BorrowerBuyer, any Managing Agent or the Administrative Collateral Custodian, the Agent, and the Lender Group, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the BorrowerBuyer, such Managing Agent the Collateral Custodian, or the Administrative Agent may from time to time reasonably request;
(v) identifying each Transferred Loan Note Receivable clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Note Receivable is owned by the Borrower Buyer and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy Required Procedures in regard to each Transferred LoanNote Receivable;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans Notes Receivable and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Notes Receivable on behalf of the Borrower, Lenders, each Hedge Counterparty Buyer and the Collateral CustodianAgent) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the BorrowerBuyer, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred LoansNotes Receivable, (B) the collectibility collectability of any Transferred LoanNote Receivable, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Buyer and the Administrative Agent of any material legal action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred LoanNote Receivable; or (2) could reasonably be expected to have a Material Adverse Effect;
(x) delivering to the Backup Servicer on each Record Date an electronic transmission (in a format acceptable to the Servicer and the Backup Servicer) containing the information that the Servicer used to prepare the Servicer Report for such Record Date together with any additional information reasonable requested by the Backup Servicer; and
(c) The Borrower Buyer and Servicer hereby acknowledge that none of the Secured Parties, Agent or the Administrative Agent and the Collateral Custodian Lender Group shall not have any obligation or liability with respect to the servicing of any Transferred LoansNotes Receivable, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp), Sale and Servicing Agreement (Horizon Technology Finance Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be reasonably necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Agent or and the Administrative AgentTrustee, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Agent or and the Administrative Agent Trustee may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative AgentTrustee on behalf of the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodianother Secured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Agent, any other Secured Parties, Party nor the Administrative Agent and the Collateral Custodian Trustee shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.), Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.or
Appears in 2 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Fifth Amended and Restated Credit Agreement (Gladstone Capital Corp)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such actions other action as may be necessary or advisable appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to service, administer and collect Transferred Loans from time the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to time on behalf the Lockbox Account in respect of the Borrower Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture; 35
(vii) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and remarket such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof;
(viii) use reasonable best efforts to enforce the Borrowerpurchase and substitution obligations of the Club Originator under the Transfer Agreement or the Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Timeshare Loans;
(ix) refrain from modifying, waiving or amending the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default on such Timeshare Loan has occurred or is imminent and such modification, amendment or waiver will not (A) materially alter the interest rate on or the principal balance of such Timeshare Loan, (B) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse effect on the Noteholders, (C) adversely affect the Timeshare Property underlying such Timeshare Loan or (D) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant a single extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion determines that (x) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (y) the value of such Timeshare Loan will be enhanced by such extension; provided, further, the Servicer shall not be permitted to modify, waive or amend the terms of any Timeshare Loan (other than a Force Majeure Loan) if the sum of the Cut-Off Date Loan Balance of such Timeshare Loan and the Cut-Off Date Loan Balances of all other Timeshare Loans (other than Force Majeure Loans) for which the Servicer has modified, waived or amended the terms thereof since the Closing Date exceeds 3.00% of the Aggregate Closing Date Collateral Balance; provided, further, that the Servicer may determine that a Timeshare Loan is a Force Majeure Loan and may defer loan payments in accordance with the Servicing Standard, but in no event, more than 2 months, provided, that the Servicer may not, without having first received confirmation from each Rating Agency that such action would not result in a qualification downgrade or withdrawal of any rating assigned to the Notes (and such confirmation shall be deemed if no qualification downgrade or withdrawal of any rating assigned to the Notes occurs after the Servicer provides each Rating Agency 10 days’ prior written notice of the same), determine that a Timeshare Loan is a Force Majeure Loan if such determination would cause the aggregate Loan Balance of all Force Majeure Loans to exceed 5.00% of the Aggregate Loan Balance;
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of 36
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s agentreasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee;
(xii) deliver such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer shall, in accordance with the Servicing Standard and the Collection Policy, promptly institute collection procedures, which may include, but is not limited to, cancellation, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent; and
(xiv) with respect to Timeshare Loans related to Timeshare Properties located in the State of Louisiana, take such action as may be necessary in the applicable jurisdiction to avoid the lapse of a related Mortgage while any such Timeshare Loan remains outstanding.
(b) The duties Servicer may not sell any of the ServicerForeclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, for each applicable Credit Card Timeshare Loan, pay the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor.
(d) For so long as Bluegreen or any of its Affiliates controls the BorrowerResorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager and the related management contract for each Resort at all times shall be reasonably satisfactory to the Noteholders representing at least 66‑2/3% of the Adjusted Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Timeshare 37
(f) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its Affiliates which materially adversely affects the Issuer’s agentinterest in such Timeshare Loan, shall includeBluegreen shall, without limitation:
within the earlier to occur of ten Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (i) preparing and submitting cause such Lien to be released of claims torecord, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Transferred Loans Servicer or one of its Affiliates, appear in and providing such reports to the Borrowerdefend, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrowerat Servicer’s expense, any Managing Agent such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Administrative Agent may reasonably request;
Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(h) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit the Club Managing Entity to, encumber, pledge or otherwise xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall cause the Club Managing Entity, booksto use commercially reasonable efforts to keep the Reservation System operational, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Club the use of, and access to, the Reservation System in accordance with the terms of the Club Management Agreement. Notwithstanding the foregoing, should the Club Managing Entity determine that it is desirable to replace the existing hardware and software related to the Reservation System, it will be allowed to enter into a lease or finance arrangement in connection with the lease or purchase of such hardware and software.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor i) The Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying comply in all material respects with the Credit and Collection Policy in regard effect on the Closing Date (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Transferred Loan;Class of Notes) and with the terms of the Timeshare Loans.
(viij) complying in all material respects with all Applicable Laws with respect At the written request of a Rating Agency, the Servicer shall prepare and deliver to itsuch Rating Agency, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation updated replines in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian format set forth in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderOffering Circular.
Appears in 2 contracts
Samples: Indenture (Bluegreen Vacations Holding Corp), Indenture (Bluegreen Vacations Corp)
Duties and Responsibilities of the Servicer. (ai) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(A) perform standard accounting services and general recordkeeping services with respect to the Timeshare Loans;
(B) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(C) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(D) contact Obligors to effect collection and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means, including but not limited to (1) mailing of routine past due notices, (2) preparing and mailing collection letters, (3) contacting delinquent Obligors by telephone to encourage payment, and (4) mailing of reminder notices to delinquent Obligors;
(E) report tax information to Obligors and taxing authorities to the extent required by law;
(F) take such actions other action as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf appropriate in the discretion of the Borrower Servicer for the purpose of collecting and as transferring to the Borrower’s agent.
(b) The duties Buyer for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the Timeshare Loans (except as otherwise expressly provided herein), as and to carry out the Borrower’s agent, shall include, without limitation:duties and obligations imposed upon the Servicer pursuant to the terms of this Agreement;
(iG) preparing arranging for Liquidations of Points related to Defaulted Timeshare Loans and submitting remarketing such Points;
(H) except for Timeshare Loans assigned by the Buyer to the Seller, dispose of claims to, and post-billing liaison with, Obligors on Transferred Points related to the Defaulted Timeshare Loans;
(iiI) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports extent requested by the Buyer, use reasonable best efforts to enforce the Borrower, the Managing Agents and the Administrative Agent in respect purchase obligation of the servicing of Seller under the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iiiJ) maintaining not modify, waive or amend the terms of any Timeshare Loan unless a default on such Timeshare Loan has occurred or is imminent or unless such modification, amendment or waiver will not: (1) alter the interest rate on or the principal balance of such Timeshare Loan, (2) shorten the final maturity of, lengthen the timing of payments of either principal or interest under, or any other terms of, such Timeshare Loan, (3) adversely affect the Points underlying such Timeshare Loan or (4) reduce materially the likelihood that payments of interest and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred principal on such Timeshare Loan and all Collections of and adjustments to each existing Transferred Loan)will be made when due; provided, however, that the Servicer may make the modifications, amendments or waivers described in clause (1) through (4) above, so long as such modifications, amendments or waivers are not made with respect to more than 2% of the Timeshare Loans by Aggregate Loan Balance on the related Sale Date prior to such modification, amendment or waiver; provided, further, the Servicer may grant an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (i) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (ii) the value of such Timeshare Loan will be enhanced by such extension, provided that the Servicer will not (x) grant more than one extension per calendar year with respect to a Timeshare Loan or (y) grant an extension for more than one calendar month with respect to a Timeshare Loan in any Successor calendar year;
(K) not impose an interest rate on any Defaulted Timeshare Loan in excess of the maximum prescribed by the National Credit Union Association, which is eighteen percent (18%) per annum simple interest at the date of this Agreement but may be modified from time to time;
(L) deliver such information and data to the Back-Up Servicer as is required under this Agreement; and
(M) at the reasonable request of the Buyer, furnish to the Buyer such underlying data as can be generated by the Servicer’s existing data processing system without undue modification or expense; provided, however, nothing in this provision materially changes or modifies the ongoing data reporting requirements under this Section 10.
(ii) For so long as a Diamond Resorts Party controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(iii) For so long as a Diamond Resorts Party controls the Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Buyer. For so long as a Diamond Resorts Party controls the Association for a Resort, and a Diamond Resorts Entity is the manager, (A) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Buyer, then it may only be required to recreate amended or modified with the Servicing Records prior written consent of each prior Servicer the Buyer, which consent shall not be unreasonably withheld or delayed and (B) if an amendment or modification to the extent related management contract and master marketing and sale contract does not materially and adversely affect the Buyer the Servicer shall send a copy of such records have been amendment or modification to the Buyer with the Monthly Report to be delivered subsequent to it in a format reasonably acceptable to the effective date of such Successor Servicer;amendment or modification.
(iv) promptly delivering to In the Borrower, event any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records Lien (including information relating to its performance under this Agreementother than a Permitted Lien) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect attaches to any Transferred Loan; Timeshare Loan or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower related collateral from any Person claiming from and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.through
Appears in 2 contracts
Samples: Loan Sale and Servicing Agreement (Diamond Resorts Parent, LLC), Loan Sale and Servicing Agreement (Diamond Resorts Parent, LLC)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp)
Duties and Responsibilities of the Servicer. (a) The As agent for and subject to the supervision, direction and control of the Trust, the Servicer shall conduct service, administer and collect under the servicingUser Leases and other Trust Assets, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as that (i) it may deem to be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of under the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records User Leases and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative AgentTrust Assets, from time to time, such information (ii) the Servicer would take if the User Leases and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is other Trust Assets were owned by the Borrower Servicer and pledged to the Administrative Agent;
(viiii) complying in all material respects are consistent with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to itPolicies. The duties of the Servicer shall include, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existenceamong other things, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer acquiring vehicles (including enforcement of collection of Transferred Loans from dealers, manufacturers or other third parties) and originating leases on behalf of the BorrowerTrust, Lenderscollecting and posting payments, each Hedge Counterparty responding to inquiries of End Users on the User Leases, investigating delinquencies, sending payment statements and reporting required tax information (if any) to End Users, disposing of returned vehicles, paying costs of disposition of Leased Vehicles, administering the User Leases, including, but not limited to, executing powers of attorney to be delivered to End Users for the limited purpose of obtaining license plates or vehicle registrations and fulfilling other state law requirements for registration of the Leased Vehicles, obtaining a Certificate of Title to a Leased Vehicle in any jurisdiction to the extent required by law, making other modifications to the User Leases (in accordance with Credit and Collection Policies), approving repairs to Leased Vehicles if required by the User Lease, forwarding recall or other notices received from the respective vehicle manufacturer to the End User, endorsing insurance settlement checks for repair work, accounting for Collections, Miscellaneous Receipts and Miscellaneous Fees and preparing and filing all required tax returns (if any) of the Trust.
(b) In order to facilitate the servicing of the User Leases by the Servicer, the Trust hereby appoints the Servicer as its agent and bailee to retain possession of the User Leases, Certificates of Title and any other related items that from time to time come into possession of the Servicer, and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain Servicer hereby accepts such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; andappointment.
(c) The Borrower Servicer shall identify from time to time all (i) periodic sales and Servicer hereby acknowledge that use tax or property (real or personal) tax reports, (ii) periodic renewals of licenses and permits, (iii) periodic renewals of qualification to act as a trust and a statutory trust and (iv) other governmental filings, including any registration statement to be filed with the Secured PartiesUnited States Securities and Exchange Commission or otherwise, any offering document (whether relating to a public or private offering), any reports or filings by the Administrative Agent Trust under the Securities Exchange Act of 1934, any financial statements or statistical information for the Trust to be included in any such registration statement, report or offering document, and the Collateral Custodian shall not have any obligation other registrations or liability approvals (collectively, “Filings”) arising with respect to any Transferred Loans, nor shall any of them be obligated to perform any or required of the obligations Trust, including such licenses, permits, and other Filings as are required for the Trust to originate and accept assignments of User Leases and to be identified as the owner of Leased Vehicles on their Certificates of Title. The Servicer shall also identify any surety bonds or other ancillary undertakings required of the Trust in respect of any Filing. The Servicer hereundershall timely prepare and file, or cause to be prepared and filed, with the cooperation of the Trustee, on behalf of the Trust with the appropriate Person each Filing and each such ancillary undertaking. The Trust grants to the Servicer the authority to, and will, from time to time, execute and deliver to the Servicer any necessary power of attorney as the Servicer may require in order to effect each such Filing and ancillary undertaking. Should the Servicer at any time receive notice, or have actual knowledge, of any non-compliance with any Filing requirement, it shall promptly take all required action to rectify such noncompliance.
Appears in 1 contract
Samples: Servicing Agreement (GE TF Trust)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all such actions as may be necessary or advisable to service, administer the following servicing and collect Transferred Loans from time to time on behalf of collection activities in accordance with the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitationServicing Standard:
(i) preparing perform standard accounting services and submitting of claims to, and post-billing liaison with, Obligors on Transferred general record keeping services with respect to the Timeshare Loans;
(ii) maintaining all necessary Servicing Records respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Transferred Timeshare Loans; KL2 2787938.7
(iv) contact Obligors to effect collection and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and providing such reports doing so by any lawful means, including but not limited to (A) mailing of routine past due notices, (B) preparing and mailing collection letters, (C) contacting delinquent Obligors by telephone to encourage payment, and (D) mailing of reminder notices to delinquent Obligors;
(v) report tax information to Obligors and taxing authorities to the Borrower, extent required by law;
(vi) take such other action as may be necessary or appropriate in the Managing Agents discretion of the Servicer for the purpose of collecting and transferring to the Administrative Agent Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the servicing Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Transferred Loans (including information relating Issuer and to its performance under this Agreement) be held as may be required hereunder or part of the Trust Estate for such period of time as the BorrowerServicer deems it advisable to do so, and to manage, lease or rent, encumber and sell such Nonfinancial Assets, so long as the Servicer acts under the reasonable belief that it is doing so in the best interests of the Issuer, and to deposit any Managing Retained Asset Proceeds in the Collection Account;
(viii) remarketing Timeshare Interests;
(ix) arranging for Liquidations of Timeshare Properties and Right-to-Use Interests related to 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans whether following repossession, foreclosure or otherwise;
(xi) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the purchase and substitution obligation of the Depositor under the Sale Agreement;
(xii) not modify, waive or amend the terms of any Timeshare Loan unless a default on such Timeshare Loan has occurred or is imminent or unless such modification, amendment or waiver will not: (i) alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest under, or any other terms of, such Timeshare Loan, (iii) adversely affect the Timeshare Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan will be made when due; provided, however, that the Servicer may make the modifications, amendments or waivers described in clause (i) through (iv) above, so long as such modifications, amendments or waivers are not made with respect to more than 2% of the Timeshare Loans by Aggregate Loan Balance as of the end of the calendar month prior to such modification, amendment or waiver; provided, further, the Servicer may grant an extension of the final KL2 2787938.7 maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (i) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (ii) the value of such Timeshare Loan will be enhanced by such extension, provided that the Servicer will not (a) grant more than one extension per calendar year with respect to a Timeshare Loan, (b) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year or (c) grant an extension that would cause the stated maturity of a Timeshare Loan to be later than 24 months prior to the Stated Maturity;
(xiii) work with Obligors in connection with any transfer of ownership of a Timeshare Interest by an Obligor to another Person and the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Interest; provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (xii) above; and
(xiv) deliver such information and data to the Back-Up Servicer as is required under the Back-Up Servicing Agreement.
(b) For so long as a Diamond Resorts Entity controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) For so long as a Diamond Resorts Entity controls the Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Administrative Agent. For so long as a Diamond Resorts Entity controls the Association for a Resort, and a Diamond Resorts Entity is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Noteholders or the Purchasers, then it may only be amended or modified with the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely affect the Noteholders or the Purchasers, the Servicer shall send a copy of such amendment or modification to the Administrative Agent with the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(d) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through a Diamond Resorts Entity which materially adversely affects the Issuer’s interest in such Timeshare Loan, the Servicer shall, within the earlier to occur of ten Business Days after receiving notice of such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Administrative Agent, in an amount and in form reasonably acceptable to the Administrative Agent KL2 2787938.7 or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably request;require.
(e) The Servicer shall: (i) promptly notify the Indenture Trustee, the Purchasers and the Administrative Agent of (A) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(f) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit any Person to, encumber, pledge or otherwise xxxxx x Xxxx (other than in the normal course of business) or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall use commercially reasonable efforts to keep the Reservation System operational, booksnot to dispose of the same and to allow the Collection the use of, records and access to, the Reservation System.
(g) The Servicer shall (i) notify the Administrative Agent and each of the Purchasers ten days prior to any material amendment or change to the Collection Policy or the Underwriting Guidelines and (ii) obtain the Administrative Agent’s prior written consent (which consent will not be unreasonably withheld or delayed) for any material amendment or change; provided, that the Servicer may immediately implement any changes (and provide notice to the Administrative Agent subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer; and provided, further, that the Servicer shall deliver a copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to the Administrative Agent, each of the Purchasers and the Indenture Trustee with the Monthly Servicer Report to be delivered subsequent to the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii), (viii), (ix) and (x) of subsection (a) above, the Servicer will undertake such duties in the ordinary course in a manner similar and consistent with (or better than) the manner in which the Servicer sells or markets other information reasonably necessary Timeshare Interests it or advisable its Affiliates owns. In addition, in connection with the Servicer’s duties under (viii), (ix) and (x) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Interests related to the Timeshare Loans owned by the Issuer before it remarkets and sells Timeshare Interests of the same type owned by the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in Receivables Securitizations).
(i) To the extent that any Timeshare Interest related to a 60-Day Plus Delinquent Loan is not a Retained Asset and is remarketed, or that a Retained Asset is subsequently remarketed or KL2 2787938.7 otherwise sold, the Servicer agrees that it shall require that Liquidation Proceeds be in the form of cash only.
(j) [Reserved].
(k) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Interest underlying a Right-to-Use Loan that is 181 days past due or a Right-to-Use Loan that is less than 181 days past due but for the collection Servicer has determined should be “charged-off”, it will re-market such Timeshare Interest within 30 days from such 181st date or date of determination and deposit the Transferred Loans (including, without limitation, records adequate to permit proceeds therefrom into the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan)Collection Account within such 30-day time period; provided, however, that any Successor Servicer the foregoing 30-day requirement shall only be required not apply to recreate the Servicing Records of each prior Servicer Right-to-Use Loans that are subject to the extent such records have been delivered to it (1) the Servicemembers Civil Relief Act of 2003, (2) where the related Obligor is a debtor in a format reasonably acceptable to such Successor Servicer;bankruptcy case, (3) where the related Obligor has demanded a UCC foreclosure or (4) where the related Obligor is a Foreign Obligor (other than Canadian Obligors).
(ivl) promptly delivering to Notwithstanding any discretion provided in the BorrowerCollection Policy, any Managing Agent or the Administrative Agentinitial Servicer hereby covenants that, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as Timeshare Property underlying a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights Mortgage Loan that is 181 days past due or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of a Mortgage Loan that is less than 181 days past due but for the Servicer has determined should be “charged-off”, it will forward the Mortgage Loan to perform its obligations hereunder; and
(ix) notifying outside legal counsel to commence foreclosure proceedings and it will re-market such Timeshare Property within 30-days following completion of foreclosure date and deposit the Borrower, each Managing Agent and proceeds therefrom into the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderCollection Account within such 30-day time period.
Appears in 1 contract
Samples: Indenture (Diamond Resorts Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable commercially reasonable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of payment invoices and/or claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Investment Policy in regard to the servicing of each Transferred LoanLoan and providing prompt written notice to the Administrative Agent, prior to the effective date thereof, of any proposed changes in the Investment Policy;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and the Related Property, Collections and Loan Documents with respect theretothereto or any part thereof;
(viii) from time to time, but not less frequently than monthly, reviewing each Transferred Loan and assigning a Risk Rating thereto in accordance with the Investment Policy based on the characteristics and performance of such Transferred Loan as of the time of such review;
(ix) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility collectability of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ixx) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened in writing to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect;
(xi) selecting Permitted Investments in which amounts on deposit in the Collection Account shall be invested in accordance with the terms and subject to the conditions specified in Section 2.9(b) and the Collection Account SACA[reserved];
(xii) maintaining the first priority, perfected security interest of the Administrative Agent, as agent for the Secured Parties, in the Collateral;
(xiii) so long as the Borrower or one of its Affiliates is the Servicer and to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, maintaining the Loan File(s) with respect to Loans included as part of the Collateral; provided that upon the occurrence and during the continuance of an Event of Default the Administrative Agent may request the Loan File(s) to be sent to the Administrative Agent or its designee; and
(xiv) so long as the Borrower or one of its Affiliates is the Servicer, to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, with respect to each Loan included as part of the Collateral, making the Loan File available for inspection by the Administrative Agent, upon reasonable advance notice, at the offices of the Servicer during normal business hours.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) In performing its duties, the Servicer shall perform its obligations in accordance with Applicable Law, the terms of this Agreement, the other Transaction Documents, all customary and usual servicing practices for loans like the Loan and, to the extent consistent with the foregoing, with commercially reasonable care (i) using a similar degree of care, skill and attention as it employs with respect to similar collateral that it manages for itself and its Affiliates having similar investment objectives and restrictions and (ii) in a manner consistent with customary standards, policies and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Loans (the “Servicing Standard”).
(e) Notwithstanding anything to the contrary contained herein, the exercise by the Administrative Agent or the Secured Parties of their rights hereunder (including, but not limited to, the delivery of a notice of the termination of the Servicer pursuant to Section 7.19), shall not release the Servicer, the Collateral Custodian or the Borrower from any of their duties or responsibilities with respect to the Collateral except to the extent provided in Section 7.19. The Secured Parties, the Administrative Agent and the Successor Servicer shall not have any obligation or liability with respect to any Collateral, other than to use commercially reasonable care in the custody and preservation of collateral in such party’s possession, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder (other than the Successor Servicer, if it is the successor Servicer appointed by Administrative Agent pursuant to Section 7.19 and subject to Section 7.19).
(f) Any payment by an Obligor in respect of any Indebtedness owed by it to the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract (including by the Loan Documents) or law and unless otherwise instructed by the Administrative Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
(g) It is hereby acknowledged and agreed that, in addition to acting in its capacity as Servicer pursuant to the terms of this Agreement, the Servicer may engage in other business and render other services outside the scope of its capacity as Servicer (including acting as a lender with respect to Loan Documents). It is hereby further acknowledged and agreed that such other activities shall in no way whatsoever alter, amend or modify any of the Servicer’s rights, duties or obligations under the Transaction Documents (including, without limitation, its duty to comply in all material respects with the Investment Policy).
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent Agent, Concord and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Deal Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Deal Agent or and the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Deal Agent or and the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Deal Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Collateral Debt Obligations and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Collateral Debt Obligations from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansCollateral Debt Obligations;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans Collateral Debt Obligations and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans Collateral Debt Obligations (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans Collateral Debt Obligations in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information Records reasonably necessary or advisable for the collection of the Transferred Loans Collateral Debt Obligations (including, without limitation, including records adequate to permit the identification of each new Transferred Loan Collateral Debt Obligation and all Collections of and adjustments to each existing Transferred LoanCollateral Debt Obligation); provided, however, provided that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent Agent, the Collateral Custodian or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Agent, the Collateral Custodian or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan Collateral Debt Obligation clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Collateral Debt Obligation is owned by the Borrower and pledged to the Administrative AgentAgent for the benefit of the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy Servicing Standards in regard to each Transferred LoanCollateral Debt Obligation;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect theretoCollateral, except where failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Collateral Debt Obligations on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred LoansCollateral Debt Obligations, (B) the collectibility of any Transferred LoanCollateral Debt Obligation, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred LoanCollateral Debt Obligation; or (2B) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Agent, the Backup Servicer and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred LoansCollateral Debt Obligations, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder, except, solely with respect to the performance of the obligations of the Servicer hereunder, to the extent that the Backup Servicer shall become the Successor Servicer pursuant to the terms hereof, it shall perform the duties of the Servicer in accordance with the provisions of this Agreement.
(d) The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Borrower and the Administrative Agent under this Agreement is intended by the parties hereto to be that of an independent contractor and not of a joint venturer, agent or partner of the Borrower or the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Capitalsource Inc)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Required Lenders or the Administrative Facility Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent Lender or the Administrative Facility Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Lender or the Administrative Facility Agent from time to time reasonably requestrequests;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Facility Agent;
(vi) complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its the existence, rights, licenses, franchises and privileges of the Borrower as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as of the Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, Loan or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, Borrower and each Managing Agent Lender and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect;
(x) promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower;
(xi) making applications for credit ratings and credit estimates as contemplated by this Agreement;
(xii) making determinations on behalf of the Borrower to accept the transfer of Loans pursuant to the Purchase Agreement and to dispose of any Loans when and as permitted under this Agreement; and
(xiii) making determinations on behalf of the Borrower to request and from time to time prepay Advances hereunder in accordance with the terms hereof.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Facility Agent, the Securities Custodian and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) The Borrower and the Facility Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Facility Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Required Lenders, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this Section 7.2(d); provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s 's agent.
(b) The duties of the Servicer, as the Borrower’s 's agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Liquidity Agent and the Administrative Deal Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Liquidity Agent or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Deal Agent or the Administrative AgentCustodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Deal Agent or the Administrative Agent Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative AgentCustodian;
(vi) complying in all material respects with the Credit and Collection Policy Policies in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws applicable laws, rules, regulations and orders with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) immediately notifying the Borrower, each Managing Liquidity Agent and the Administrative Deal Agent of the occurrence of an Early Amortization Event (including, without limitation, a material adverse change in the financial condition of the Originator);
(x) notifying the Liquidity Agent and the Deal Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effectmaterial adverse effect on the Loans as a whole or on the ability of the Servicer or the Originator to perform its obligations under the Basic Documents or on the Servicer or the Borrower or any of their respective property; and
(xi) notifying the Deal Agent of any proposed change in the Credit and Collections Policies that could have an adverse effect on all or any portion of the Collateral, on the Seller or on the interests of the Deal Agent or any Secured Party.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Deal Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (Healthcare Financial Partners Inc)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Notes Receivable and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Notes Receivable from time to time on behalf of the Borrower Buyer and as the BorrowerBuyer’s agentagent in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the BorrowerBuyer’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansNotes Receivable;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans Notes Receivable and providing such reports to the BorrowerBuyer, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans Notes Receivable (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Buyer or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans Notes Receivable in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans Notes Receivable (including, without limitation, records adequate to permit the identification of each new Transferred Loan Note Receivable and all Collections of and adjustments to each existing Transferred LoanNote Receivable); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the BorrowerBuyer, any Managing Agent or the Administrative Collateral Custodian, the Agent, and the Lender Group, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the BorrowerBuyer, such Managing Agent the Collateral Custodian, or the Administrative Agent may from time to time reasonably request;
(v) identifying each Transferred Loan Note Receivable clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Note Receivable is owned by the Borrower Buyer and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy Required Procedures in regard to each Transferred LoanNote Receivable;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans Notes Receivable and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Notes Receivable on behalf of the Borrower, Lenders, each Hedge Counterparty Buyer and the Collateral CustodianAgent) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the BorrowerBuyer, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred LoansNotes Receivable, (B) the collectibility collectability of any Transferred LoanNote Receivable, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Buyer and the Administrative Agent of any material legal action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred LoanNote Receivable; or (2) could reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower Buyer and Servicer hereby acknowledge that none of the Secured Parties, Agent or the Administrative Agent and the Collateral Custodian Lender Group shall not have any obligation or liability with respect to the servicing of any Transferred LoansNotes Receivable, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Required Lenders or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent Lender or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Lender or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Lender and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect; and
(x) promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) The Borrower and the Administrative Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Administrative Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Administrative Agent, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this subsection; provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Required Lenders or the Administrative Facility Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Lender, the Facility Agent or the Administrative AgentRating Agency, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Lender, the Facility Agent or the Administrative Agent Rating Agency from time to time reasonably requestrequests;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Facility Agent;
(vi) complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; andhereunder or (D) the Required Facility Rating;
(ix) notifying the BorrowerBorrower and each Lender, each Managing Agent and the Administrative Agent Rating Agency of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect;
(x) promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower;
(xi) making applications for credit ratings and credit estimates as contemplated by this Agreement;
(xii) making determinations on behalf of the Borrower to accept the transfer of Loans pursuant to the Purchase Agreement and to dispose of any Loans when and as permitted under this Agreement; and
(xiii) making determinations on behalf of the Borrower to request and from time to time prepay Advances hereunder in accordance with the terms hereof.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Facility Agent, the Securities Custodian and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) The Borrower and the Facility Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Facility Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Required Lenders and satisfaction of the Rating Condition, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this subsection; provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others and in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Capital, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Receivables and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Receivable from time firms to time on behalf of the Borrower and as the Borrower’s agenttime.
(b) The duties of the Servicer, as the Borrower’s agent, Servicer shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansReceivables;
(ii) arranging for the direct remittance of all Collections with respect to each Allotment Obligor to the Collection Account;
(iii) using its best efforts, consistent with its customary servicing procedures, to repossess or otherwise convert the ownership of the Financed Vehicle securing any Receivable as to which the Servicer shall have determined eventual payment in full is unlikely. The Servicer shall follow such customary and usual practices and procedures as it shall become necessary or advisable in its servicing of automotive receivables, which may include reasonable efforts to realize upon any recourse to Vehicle Dealers and selling the Financed Vehicle at public or private sale. The foregoing shall be subject to the provision that, in any case in which the Financed Vehicle shall have suffered damage, the Servicer shall not expend funds in connection with the repair or the repossession of such Financed Vehicle unless it shall determine in its discretion that such repair and/or repossession will increase the Proceeds by an amount greater than the amount of such expenses;
(iv) maintaining all necessary Servicing Records with respect to the Transferred Loans Receivables and providing such reports to the Borrower, the Managing Agents Liquidity Agent and the Administrative Deal Agent in respect of the servicing of the Transferred Loans Receivables (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Liquidity Agent or the Administrative Deal Agent may reasonably request;
(iiiv) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans Receivables in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans Receivables (including, without limitation, records adequate to permit the identification of each new Transferred Loan Receivable and all Collections of and adjustments to each existing Transferred LoanReceivable); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(ivvi) promptly delivering to the Borrower, any Managing Deal Agent or the Administrative Collateral Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Deal Agent or the Administrative Collateral Agent may from time to time reasonably request;
(vvii) identifying each Transferred Loan Receivable clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Receivable is owned by the Borrower and pledged to the Administrative Collateral Agent;
(viviii) complying in all material respects with the Credit and Collection Policy Policies in regard to each Transferred LoanReceivable and the related Contracts;
(viiix) complying in all material respects with all Applicable Laws applicable laws, rules, regulations and orders with respect to it, its business and properties and all Transferred Loans Receivables, related Contracts and Collections with respect thereto;
(viiix) preserving and maintaining its corporate existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organizationincorporation, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Receivables on behalf of the Borrower, Lenders, each Hedge Counterparty Lenders and the Collateral CustodianAgent) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty Lenders and the Collateral Custodian Agent in the Transferred LoansReceivables, (B) the collectibility of any Transferred LoanReceivable, or (C) the ability of the Servicer to perform its obligations hereunder; and, or (D) the ability of the Parent to perform its obligations under this Agreement or under the Contracts;
(ixxi) immediately notifying the Liquidity Agent and the Deal Agent of the occurrence of a Termination Event (including, without limitation, a material adverse change in the financial condition of the Parent) or a Potential Termination Event;
(xii) notifying the Borrower, each Managing Liquidity Agent and the Administrative Deal Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to may be (1) asserted by an Obligor with respect to any Transferred LoanReceivable; or (2) reasonably expected to have a Material Adverse Effectmaterial adverse effect on the Contracts as a whole or on the ability of the Servicer or the Originator to perform its obligations under the Basic Documents or on the Servicer or the Borrower or any of their respective property;
(xiii) arranging for the direct remittance of all Collections with respect to each Transferred Receivable to the Lockbox Account or Lockbox, as the case may be; and
(xiv) immediately notifying the Deal Agent and the Collateral Agent of (A) any proposed change in the Credit and Collection Policies or (B) any change in procedures in connection with the Collections with respect to Allotment Obligors which would permit the Servicer to cause such financial institutions making payments on behalf of the Allotment Obligors to make payments in respect of Transferred Receivables directly to the Collection Account.
(c) The Borrower and Servicer hereby acknowledge that the Secured PartiesLenders, the Administrative Deal Agent and the Collateral Custodian Agent shall not have any obligation or liability with respect to any Transferred LoansReceivables or related Contracts, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Receivables Funding and Servicing Agreement (Consumer Portfolio Services Inc)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the extent required by law;
(vi) take such actions other action as may be necessary or advisable appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to service, administer and collect Transferred Loans from time the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to time on behalf the Lockbox Account in respect of the Borrower Timeshare Loans (except as otherwise expressly provided 35 herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and remarket such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof;
(viii) use reasonable best efforts to enforce the Borrowerpurchase and substitution obligations of the Club Originator under the Transfer Agreement or the Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Timeshare Loans;
(ix) refrain from modifying, waiving or amending the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which a default on such Timeshare Loan has occurred or is imminent and such modification, amendment or waiver will not (A) materially alter the interest rate on or the principal balance of such Timeshare Loan, (B) shorten the final maturity of, lengthen the timing of payments of either principal or interest, or any other terms of, such Timeshare Loan in any manner which would have a material adverse effect on the Noteholders, (C) adversely affect the Timeshare Property underlying such Timeshare Loan or (D) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall be made when due; provided, further, the Servicer may grant a single extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion determines that (x) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (y) the value of such Timeshare Loan will be enhanced by such extension; provided, further, the Servicer shall not be permitted to modify, waive or amend the terms of any Timeshare Loan (other than a Force Majeure Loan) if the sum of the Cut-Off Date Loan Balance of such Timeshare Loan and the Cut-Off Date Loan Balances of all other Timeshare Loans (other than Force Majeure Loans) for which the Servicer has modified, waived or amended the terms thereof since the Closing Date exceeds 3.00% of the Aggregate Closing Date Collateral Balance; provided, further, that the Servicer may determine that a Timeshare Loan is a Force Majeure Loan and may defer loan payments in accordance with the Servicing Standard, but in no event, more than 2 months, provided, that the Servicer may not, without having first received confirmation from each Rating Agency that such action would not result in a qualification downgrade or withdrawal of any rating assigned to the Notes, determine that a Timeshare Loan is a Force Majeure Loan if such determination would cause the aggregate Loan Balance of all Force Majeure Loans to exceed 5.00% of the Aggregate Loan Balance;
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments 36 of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in Section 5.3(a)(ix) hereof;
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s agentreasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee;
(xii) deliver such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer shall, in accordance with the Servicing Standard and the Collection Policy, promptly institute collection procedures, which may include, but is not limited to, cancellation, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent; and
(xiv) with respect to Timeshare Loans related to Timeshare Properties located in the State of Louisiana, take such action as may be necessary in the applicable jurisdiction to avoid the lapse of a related Mortgage while any such Timeshare Loan remains outstanding.
(b) The duties Servicer may not sell any of the ServicerForeclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, for each applicable Credit Card Timeshare Loan, pay the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor.
(d) For so long as Bluegreen or any of its Affiliates controls the BorrowerResorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager and the related management contract for each Resort at all times shall be reasonably satisfactory to the Noteholders representing at least 66‑2/3% of the Adjusted Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Timeshare Association for a Resort, and Bluegreen or an Affiliate thereof is the manager, the related management contract may be amended or modified in a manner that reasonably may be determined to have a material 37 adverse effect on the Noteholders only with the prior written consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, which consent shall not be unreasonably withheld or delayed.
(f) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its Affiliates which materially adversely affects the Issuer’s agentinterest in such Timeshare Loan, shall includeBluegreen shall, without limitation:
within the earlier to occur of ten Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (i) preparing and submitting cause such Lien to be released of claims torecord, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Transferred Loans Servicer or one of its Affiliates, appear in and providing such reports to the Borrowerdefend, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrowerat Servicer’s expense, any Managing Agent such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Administrative Agent may reasonably request;
Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(h) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit the Club Managing Entity to, encumber, pledge or otherwise xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall cause the Club Managing Entity, booksto use commercially reasonable efforts to keep the Reservation System operational, records and other information reasonably necessary or advisable for the collection not to dispose of the Transferred Loans same and to allow the Club the use of, and access to, the Reservation System in accordance with the terms of the Club Management Agreement. Notwithstanding the foregoing, should the Club Managing Entity determine that it is desirable to replace the existing hardware and software related to the Reservation System, it will be allowed to enter into a lease or finance arrangement in connection with the lease or purchase of such hardware and software.
(including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor i) The Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying comply in all material respects with the Credit and Collection Policy in regard effect on the Closing Date (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Transferred Loan;Class of Notes) and with the terms of the Timeshare Loans.
(viij) complying in all material respects with all Applicable Laws with respect At the written request of a Rating Agency, the Servicer shall prepare and deliver to itsuch Rating Agency, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation updated replines in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian format set forth in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.Offering Circular. 38
Appears in 1 contract
Samples: Indenture (Bluegreen Vacations Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of payment invoices and/or claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to the servicing of each Transferred LoanLoan and providing the prompt written notice to the Administrative Agent, prior to the effective date thereof, of any proposed changes in the Credit and Collection Policy;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and the Related Property, Collections and Loan Documents with respect theretothereto or any part thereof;
(viii) reviewing each Transferred Loan no less frequently than quarterly and assigning a Risk Factor thereto at such times as may be necessary so that no Transferred Loan has an assigned Risk Factor that is more than twelve months old, in each case in accordance with the Credit and Collection Policy based on the characteristics and performance of such Transferred Loan as of the time of such review;
(ix) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility collectability of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ixx) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to reasonably would be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect;
(xi) selecting Permitted Investments in which amounts on deposit in the Collection Account shall be invested in accordance with the terms and subject to the conditions specified in Section 2.9(b);
(xii) maintaining the first priority, perfected security interest of the Administrative Agent, as agent for the Secured Parties, in the Collateral;
(xiii) so long as the Borrower or one of its Affiliates is the Servicer and to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, maintaining the Loan File(s) with respect to Loans included as part of the Collateral; provided that upon the occurrence and during the continuance of an Event of Default the Administrative Agent may request the Loan File(s) to be sent to the Administrative Agent or its designee;
(xiv) so long as the Borrower or one of its Affiliates is the Servicer, to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, with respect to each Loan included as part of the Collateral, making the Loan File available for inspection by the Administrative Agent, upon reasonable advance notice, at the offices of the Servicer during normal business hours subject to Section 5.1(w); and
(xv) preparing and delivering each Monthly Report in accordance with Section 7.11(a).
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) In performing its duties, the Servicer shall perform its obligations with reasonable care (i) using a similar degree of care, skill and attention as it employs with respect to similar collateral that it manages for itself and its Affiliates having similar investment objectives and restrictions and (ii) in a manner consistent with customary standards, policies and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Loans.
(e) Notwithstanding anything to the contrary contained herein, the exercise by the Administrative Agent or the Secured Parties of their rights hereunder (including, but not limited to, the delivery of a notice of the termination of the Servicer pursuant to Section 7.19 hereof), shall not release the Servicer, the Collateral Custodian or the Borrower from any of their duties or responsibilities with respect to the Collateral except to the extent provided in Section 7.19 hereof. The Secured Parties, the Administrative Agent and the Successor Servicer shall not have any obligation or liability with respect to any Collateral, other than to use reasonable care in the custody and preservation of collateral in such party’s possession, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder (other than the Successor Servicer, if it is the successor Servicer appointed by Administrative Agent pursuant to Section 7.19 hereof and subject to Section 7.19 hereof).
(f) Any payment by an Obligor in respect of any Indebtedness owed by it to the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract (including by the Loan Documents) or law and unless otherwise instructed by the Administrative Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
(g) It is hereby acknowledged and agreed that, in addition to acting in its capacity as Servicer pursuant to the terms of this Agreement, the Servicer may engage in other business and render other services outside the scope of its capacity as Servicer (including acting as administrative agent or as a lender with respect to Loan Documents). It is hereby further acknowledged and agreed that such other activities shall in no way whatsoever alter, amend or modify any of the Servicer’s rights, duties or obligations under the Transaction Documents (including, without limitation, its duty to comply in all material respects with the Credit and Collection Policy).
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable commercially reasonable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of payment invoices and/or claims to, and post-billing post‑billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Investment Policy in regard to the servicing of each Transferred LoanLoan and providing prompt written notice to the Administrative Agent, prior to the effective date thereof, of any proposed changes in the Investment Policy;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and the Related Property, Collections and Loan Documents with respect theretothereto or any part thereof;
(viii) from time to time, but not less frequently than monthly, reviewing each Transferred Loan and assigning a Risk Rating thereto in accordance with the Investment Policy based on the characteristics and performance of such Transferred Loan as of the time of such review;
(ix) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Administrative Agent, the Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility collectability of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ixx) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened in writing to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect;
(xi) selecting Permitted Investments in which amounts on deposit in the Collection Account shall be invested in accordance with the terms and subject to the conditions specified in Section 2.9(b) and the Collection Account SACA;
(xii) maintaining the first priority, perfected security interest of the Administrative Agent, as agent for the Secured Parties, in the Collateral;
(xiii) so long as the Borrower or one of its Affiliates is the Servicer and to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, maintaining the Loan File(s) with respect to Loans included as part of the Collateral; provided that upon the occurrence and during the continuance of an Event of Default the Administrative Agent may request the Loan File(s) to be sent to the Administrative Agent or its designee; and
(xiv) so long as the Borrower or one of its Affiliates is the Servicer, to the extent that such Loan Files are not held by the Collateral Custodian, whether at the Custody Facilities or otherwise, with respect to each Loan included as part of the Collateral, making the Loan File available for inspection by the Administrative Agent, upon reasonable advance notice, at the offices of the Servicer during normal business hours.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) In performing its duties, the Servicer shall perform its obligations in accordance with Applicable Law, the terms of this Agreement, the other Transaction Documents, all customary and usual servicing practices for loans like the Loan and, to the extent consistent with the foregoing, with commercially reasonable care (i) using a similar degree of care, skill and attention as it employs with respect to similar collateral that it manages for itself and its Affiliates having similar investment objectives and restrictions and (ii) in a manner consistent with customary standards, policies and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Loans (the “Servicing Standard”).
(e) Notwithstanding anything to the contrary contained herein, the exercise by the Administrative Agent or the Secured Parties of their rights hereunder (including, but not limited to, the delivery of a notice of the termination of the Servicer pursuant to Section 7.19), shall not release the Servicer, the Collateral Custodian or the Borrower from any of their duties or responsibilities with respect to the Collateral except to the extent provided in Section 7.19. The Secured Parties, the Administrative Agent and the Successor Servicer shall not have any obligation or liability with respect to any Collateral, other than to use commercially reasonable care in the custody and preservation of collateral in such party’s possession, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder (other than the Successor Servicer, if it is the successor Servicer appointed by Administrative Agent pursuant to Section 7.19 and subject to Section 7.19).
(f) Any payment by an Obligor in respect of any Indebtedness owed by it to the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract (including by the Loan Documents) or law and unless otherwise instructed by the Administrative Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
(g) It is hereby acknowledged and agreed that, in addition to acting in its capacity as Servicer pursuant to the terms of this Agreement, the Servicer may engage in other business and render other services outside the scope of its capacity as Servicer (including acting as a lender with respect to Loan Documents). It is hereby further acknowledged and agreed that such other activities shall in no way whatsoever alter, amend or modify any of the Servicer’s rights, duties or obligations under the Transaction Documents (including, without limitation, its duty to comply in all material respects with the Investment Policy).
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower Issuer and as the Borrower’s Issuer's agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others and in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the Borrower’s Issuer's agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the BorrowerIssuer, the Managing Agents Indenture Trustee and the Administrative Agent Noteholders in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the BorrowerIssuer, any Managing Agent the Noteholders or the Administrative Agent Indenture Trustee may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the BorrowerIssuer, any Managing Agent or the Administrative AgentIndenture Trustee, the Noteholders and the Collateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the BorrowerIssuer, such Managing Agent the Indenture Trustee, the Noteholders or the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower Issuer and pledged to the Administrative AgentIndenture Trustee, for the benefit of the Noteholders;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the BorrowerIssuer, Lenders, each Hedge Counterparty the Indenture Trustee and the Collateral CustodianNoteholders) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the BorrowerIssuer, Lenders, each Hedge Counterparty the Indenture Trustee and the Collateral Custodian Noteholders in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the BorrowerIssuer, each Managing Agent the Noteholders and the Administrative Agent Indenture Trustee of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower Issuer and Servicer hereby acknowledge that none of the Secured PartiesIndenture Trustee, the Administrative Agent and Agent, any other Noteholder nor the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s 's agent.
(b) The duties of the Servicer, as the Borrower’s 's agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Liquidity Agent and the Deal Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing the Liquidity Agent or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;.
(iv) promptly delivering to the Borrower, any Managing and the Deal Agent or the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Deal Agent or the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Deal Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing the Liquidity Agent and the Administrative Deal Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.or
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others and in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, the Lender Group and the Collateral Custodian (if one has been appointed), from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent the Agent, or the Administrative Agent Collateral Custodian (if one has been appointed) may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty Borrower and the Collateral CustodianAgent,) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Secured PartiesAgent or the Lender Group, the Administrative Agent and nor the Collateral Custodian (if one has been appointed), shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Duties and Responsibilities of the Servicer. (a) The As agent for and subject to the supervision, direction and control of the Trust, the Servicer shall conduct service, administer and collect under the servicingUser Leases and other Trust Assets, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as that (i) it may deem to be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of under the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records User Leases and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative AgentTrust Assets, from time to time, such information (ii) the Servicer would take if the User Leases and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is other Trust Assets were owned by the Borrower Servicer and pledged to the Administrative Agent;
(viiii) complying in all material respects are consistent with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to itPolicies. The duties of the Servicer shall include, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existenceamong other things, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer acquiring vehicles (including enforcement of collection of Transferred Loans from dealers, manufacturers or other third parties) and originating leases on behalf of the BorrowerTrust, Lenderscollecting and posting payments, each Hedge Counterparty responding to inquiries of End Users on the User Leases, investigating delinquencies, sending payment statements and reporting required tax information (if any) to End Users, disposing of returned vehicles, paying costs of disposition of Leased Vehicles, administering the User Leases, including, but not limited to, executing powers of attorney to be delivered to End Users for the limited purpose of obtaining license plates or vehicle registrations and fulfilling other state law requirements for registration of the Leased Vehicles, obtaining a Certificate of Title to a Leased Vehicle in any jurisdiction to the extent required by law, making other modifications to the User Leases (in accordance with Credit and Collection Policies), approving repairs to Leased Vehicles if required by the User Lease, forwarding recall or other notices received from the respective vehicle manufacturer to the End User, endorsing insurance settlement checks for repair work, accounting for Collections, Miscellaneous Receipts and Miscellaneous Fees and preparing and filing all required tax returns (if any) of the Trust.
(b) In order to facilitate the servicing of the User Leases by the Servicer, the Trust hereby appoints the Servicer as its agent and bailee to retain possession of the User Leases, Certificates of Title and any other related items that from time to time come into possession of the Servicer, and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain Servicer hereby accepts such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; andappointment.
(c) The Borrower Servicer shall identify from time to time all (i) periodic sales and Servicer hereby acknowledge that the Secured Partiesuse tax or property (real or personal) tax reports, (ii) periodic renewals of licenses and permits, (iii) periodic renewals of qualification to act as a trust and a statutory trust and (iv) other governmental filings, registrations or approvals (collectively, “Filings”) arising with respect to, or required of, the Administrative Agent Trust, including such licenses, permits, and other Filings as are required for the Collateral Custodian Trust to originate and accept assignments of User Leases and to be identified as the owner of Leased Vehicles on their Certificates of Title. The Servicer shall not have also identify any obligation surety bonds or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any other ancillary undertakings required of the obligations Trust in respect of any Filing. The Servicer shall timely prepare and file, or cause to be filed, with the cooperation of the Trustees, on behalf of the Trust with the appropriate Person each Filing and each such ancillary undertaking. The Trust grants to the Servicer hereunderthe authority to, and will, from time to time, execute and deliver to the Servicer any necessary power of attorney as the Servicer may require in order to effect each such Filing and ancillary undertaking. Should the Servicer at any time receive notice, or have actual knowledge, of any non-compliance with any Filing requirement, it shall promptly take all required action to rectify such noncompliance.
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans Notes Receivable and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans Notes Receivable from time to time on behalf of the Borrower Buyer and as the BorrowerBuyer’s agentagent in accordance with the Accepted Servicing Practices. The Back-up Servicer shall conduct the following activities:
(i) on a monthly basis, the Back-up Servicer shall accept the delivery from the Servicer of the electronic transmission sent by the Servicer pursuant to Section 4.02(b);
(ii) the Back-up Servicer will ensure that such transmission is readable and will retain such information until it receives the next transmission from the Servicer. The Back-up Servicer shall not be required to review the information set forth in any such electronic transmission. The Back-up Servicer acknowledges that prior to the date hereof it performed a review of the Servicer and its servicing practices.
(b) The duties of the Servicer, as the BorrowerBuyer’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred LoansNotes Receivable;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans Notes Receivable and providing such reports to the BorrowerBuyer, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans Notes Receivable (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Buyer or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans Notes Receivable in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans Notes Receivable (including, without limitation, records adequate to permit the identification of each new Transferred Loan Note Receivable and all Collections of and adjustments to each existing Transferred LoanNote Receivable); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the BorrowerBuyer, any Managing Agent or the Administrative Collateral Custodian, the Agent, and the Lender Group, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the BorrowerBuyer, such Managing Agent the Collateral Custodian, or the Administrative Agent may from time to time reasonably request;
(v) identifying each Transferred Loan Note Receivable clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan Note Receivable is owned by the Borrower Buyer and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy Required Procedures in regard to each Transferred LoanNote Receivable;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans Notes Receivable and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans Notes Receivable on behalf of the Borrower, Lenders, each Hedge Counterparty Buyer and the Collateral CustodianAgent) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the BorrowerBuyer, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred LoansNotes Receivable, (B) the collectibility collectability of any Transferred LoanNote Receivable, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Buyer and the Administrative Agent of any material legal action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred LoanNote Receivable; or (2) could reasonably be expected to have a Material Adverse Effect;
(x) delivering to the Back-up Servicer on each Record Date an electronic transmission (in a format acceptable to the Servicer and the Back-up Servicer) containing the information that the Servicer used to prepare the Servicer Report for such Record Date together with any additional information reasonable requested by the Back-up Servicer; and
(c) The Borrower Buyer and Servicer hereby acknowledge that none of the Secured Parties, Agent or the Administrative Agent and the Collateral Custodian Lender Group shall not have any obligation or liability with respect to the servicing of any Transferred LoansNotes Receivable, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Required Lenders or the Administrative Facility Agent may reasonably request;; {B2297203; 11} - 42 -
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent Lender or the Administrative Facility Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Lender or the Administrative Facility Agent from time to time reasonably requestrequests;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Facility Agent;
(vi) complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its the existence, rights, licenses, franchises and privileges of the Borrower as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as of the Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, Loan or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, Borrower and each Managing Agent Lender and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect; {B2297203; 11} - 43 -
(x) promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower;
(xi) making applications for credit ratings and credit estimates as contemplated by this Agreement;
(xii) making determinations on behalf of the Borrower to accept the transfer of Loans pursuant to the Purchase Agreement and to dispose of any Loans when and as permitted under this Agreement; and
(xiii) making determinations on behalf of the Borrower to request and from time to time prepay Advances hereunder in accordance with the terms hereof.
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Facility Agent, the Securities Custodian and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
(d) The Borrower and the Facility Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Facility Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Required Lenders, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this Section 7.2(d); provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
: (i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
; (ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;
; (iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
; (iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.88
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct service and make collections on the servicing, administration Auto Loans and collection otherwise enforce the rights of the Transferred Trust in the Auto Loans and shall takethe other Trust Assets, or cause to be takenin conformity with Section 4.01 and as more specifically described in the Credit and Collection Policies, all as such actions as may be necessary or advisable to service, administer Credit and collect Transferred Loans Collection Policies are amended from time to time on behalf of (the Borrower and as the Borrower’s agent.
(b) "Servicer Duties"). The duties of the Servicer, as the Borrower’s agent, Servicer Duties shall include, without limitationinclude at all times:
(i) preparing certifying to the Sponsor and submitting the Trustee on behalf of claims to, the Trust prior to the Sponsor's purchase of an Auto Loan that it has received (A) the related Loan File containing each item under the related Sale Agreement and post-billing liaison with, Obligors on Transferred Loans(B) an executed Sale Assignment;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans monitoring and providing such reports to the Borrower, the Managing Agents tracking Automobile titles and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably requestinsurance;
(iii) maintaining billing, collection and implementing administrative and operating procedures recording of Payments including sending each Obligor a letter notifying it to send payments to the Eligible Account maintained by the Servicer for such purpose; (including, without limitation, an ability provided that the Servicer shall not make any change in its instructions to recreate Servicing Records evidencing the Transferred Loans any Obligor regarding payments to be made in the event respect of the destruction of the originals thereofAuto Loans other than pursuant to Sections 4.04(d), 4.04(e) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan4.15(c); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer);
(iv) promptly delivering communicating with and providing billing records to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably requestObligors;
(v) identifying each Transferred Loan clearly depositing of all Payments and unambiguously other monies received in its Servicing Records to reflect that such Transferred Loan is owned respect of the Auto Loans (without offset or deduction) into an account maintained by the Borrower Servicer in the name of the Trust (which account shall be an Eligible Account), and pledged thereafter (A) depositing all such sums into the Collection Account in accordance with Section 7.02(b) and (B) paying all investment earnings, if any, on sums in such account to the Administrative Agent[Master Administrator] on each Distribution Date;
(vi) complying administering and enforcing all rights and responsibilities of the holder of the Auto Loans provided for in all material respects with the Credit Assignments and Collection Policy in regard to each Transferred LoanInsurance Policies;
(vii) complying submitting information on the Auto Loans to the Insurance Companies or their designated agents (as specified in all material respects the Credit and Collection Policies) for coverage under the Insurance Policies; receiving Payments as the Trust's agent on the Insurance Policies as well as on the insurance policies maintained by the Obligors, filing claims with all Applicable Laws the Insurance Companies with respect thereto and working with the [Master Administrator] to it, its business and properties and all Transferred Loans and Collections with resolve any disputes in respect thereto;
(viii) preserving issuance of the reports to the [Master Administrator], the Trustee and maintaining its existencethe Rating Agency required by this Agreement;
(ix) providing the [Master Administrator] with such assistance as it may require for the preparation and timely delivery of the List of Auto Loans pursuant to Section 5.03(a)(iii), rightsand furnishing, licenseson request of the [Master Administrator], franchises and privileges the Trustee or the Rating Agency, such reasonably pertinent underlying data as a corporation can be generated by the Servicer's existing data processing systems without, in the jurisdiction opinion of the Servicer, undue modification or expense;
(x) repossessing and remarketing of Automobiles following Obligor defaults;
(xi) maintaining such books of account and other records as will enable the [Master Administrator] and the Trustee to determine the status of each Auto Loan;
(xii) providing the Obligors with any reports required by applicable law; and
(xiii) making payments in respect of certain Auto Loan origination reimbursement obligations of the Sponsor arising in connection with the acquisition of the Auto Loans, as directed by the Sponsor, but in no event shall the Servicer be required to make such a payment such that the aggregate payments made by it exceed the aggregate Servicer Interest Amount received by it unless the Sponsor shall have provided such funds to it.
(b) The Servicer may xxx to enforce or collect upon the Auto Loans in its organizationown name, and qualifying and remaining qualified or as agent for the Trust. If the Servicer elects to commence a legal proceeding to enforce an Auto Loan in good standing as a foreign corporation and qualifying its own name, the act of commencement shall be deemed to and remaining authorized and licensed be an automatic assignment of the Auto Loan by the Trustee to perform obligations as the Servicer (including enforcement for purposes of collection of Transferred Loans only. If in any enforcement suit or legal proceeding it is held that the Servicer may not enforce an Auto Loan on the grounds that it is not a real party in interest or a holder entitled to enforce the Auto Loan, the Trustee, on behalf of the BorrowerTrust, Lenders, each Hedge Counterparty and with the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests consent of the BorrowerServicer, Lenders, each Hedge Counterparty and shall take such steps as the Collateral Custodian in Servicer deems necessary to assign to the Transferred Loans, (B) Servicer the collectibility Auto Loan solely for the purpose of any Transferred Loan, or (C) the ability of permitting the Servicer to perform its obligations hereunder; and
(ix) notifying enforce the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Auto Loan; or (2) reasonably expected to have a Material Adverse Effect; and.
(c) The Borrower and Servicer hereby acknowledge shall exercise any rights of recourse against third Persons that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability exist with respect to any Transferred Loans, nor shall Auto Loan (except with respect to any of them be obligated to perform any repurchase obligation of the obligations Originator, which shall be enforced by the [Master Administrator] pursuant to Section 3.03) or otherwise in accordance with the Servicer's usual practice and the standard of care required by Section 4.01.
(d) In accordance with the standard of care in Section 4.01 the Servicer may grant to the Obligor on any Auto Loan any rebate, refund or adjustment that the Servicer in good faith believes is required under the Auto Loan or applicable law in connection with a prepayment in full of the Auto Loan, and may deduct the amount of any such rebate, refund or adjustment from the amount otherwise payable by the Servicer into the Collection Account. The Servicer may not permit any rescission or cancellation of any Auto Loan nor may it take any action with respect to any Auto Loan, Insurance Policy or Assignment which would materially impair the rights of the Trust or the Certificateholders therein or in the proceeds thereof.
(e) The Automobile securing an Auto Loan shall not be released by or on behalf of the Sponsor or the Servicer from the security interest granted by such Auto Loan in whole or in part, except:
(i) when such Auto Loan has been paid in full;
(ii) immediately upon any exchange or substitution of such Automobile by the Dealer or manufacturer thereof in settlement of claims as to defects, breach of warranties, and similar matters, with an Automobile of equal or greater collateral value as of the date of such exchange in the reasonable judgment of the Servicer hereunder(subject to all the terms hereof including the recordation of the Trustee's lien thereon and the requirements of the Insurance Policies); or
(iii) as otherwise contemplated in Section 3.03; provided, however, that the Servicer may extend any Auto Loan for credit related reasons, consistent with the servicing standard in Section 4.01, subject to the limitations on extensions and modifications on Auto Loans set forth in the Insurance Policies.
(f) Except as expressly provided herein, neither the [Master Servicer] nor the Servicer shall sell, assign (by operation of law or otherwise) or otherwise dispose of, or create any Adverse Claim upon or with respect to, any Auto Loan (or any right to income in respect thereof), or any account in which any Payments are deposited, or assign any right to receive income in respect of any Auto Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Auto Finance Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower Issuer and as the BorrowerIssuer’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the Servicer, as the BorrowerIssuer’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the BorrowerIssuer, the Managing Agents Indenture Trustee and the Administrative Agent Initial Noteholder in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the BorrowerIssuer, any Managing Agent the Initial Noteholder or the Administrative Agent Indenture Trustee may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the BorrowerIssuer, any Managing Agent or the Administrative AgentIndenture Trustee, the Initial Noteholder and the Collateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the BorrowerIssuer, such Managing Agent the Indenture Trustee, the Initial Noteholder or the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower Issuer and pledged to the Administrative AgentIndenture Trustee, for the benefit of the Noteholders;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the BorrowerIssuer, Lenders, each Hedge Counterparty the Indenture Trustee and the Collateral CustodianNoteholders) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the BorrowerIssuer, Lenders, each Hedge Counterparty the Indenture Trustee and the Collateral Custodian Noteholders in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the BorrowerIssuer, each Managing Agent the Initial Noteholder and the Administrative Agent Indenture Trustee of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower Issuer and Servicer hereby acknowledge that none of the Secured PartiesIndenture Trustee, the Administrative Agent and Initial Noteholder, any other Noteholder nor the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Deal Agent and each Lender Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Deal Agent or and each Lender Agent and the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Deal Agent or and the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Deal Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral CustodianSecured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility collectibilitycollectability of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Deal Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Deal Agent, any other Secured Parties, the Administrative Agent and Party or the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital, LTD)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub-servicers, all the following servicing and collection activities in accordance with the Servicing Standard:
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
(iv) contact Obligors to effect collection and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means, including but not limited to (A) mailing of routine past due notices, (B) preparing and mailing collection letters, (C) contacting delinquent Obligors by telephone to encourage payment, and (D) mailing of reminder notices to delinquent Obligors;
(v) report tax information to Obligors and taxing authorities to the extent required by law; Diamond - Collateral and Servicing Agreement #39303843
(vi) take such actions other action as may be necessary or advisable appropriate in the discretion of the Servicer for the purpose of collecting and transferring to servicethe Collateral Agent for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the Timeshare Loans (except as otherwise expressly provided herein), administer and collect Transferred Loans from time to time carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Agreement;
(vii) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Borrower and to be held as part of the Subject Collateral for such period of time as the Servicer deems it advisable to do so, and to manage, lease or rent, encumber and sell such Nonfinancial Assets, so long as the Servicer acts under the reasonable belief that it is doing so in the best interests of the Borrower’s agent, and to deposit any Retained Asset Proceeds in the Collection Account;
(viii) remarketing Timeshare Interests;
(ix) arranging for Liquidations of Timeshare Properties and Right-to-Use Interests related to 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans whether following repossession, foreclosure or otherwise;
(xi) to the extent requested by the Collateral Agent, use reasonable best efforts to enforce the purchase and substitution obligation of the Seller under the Sale Agreement;
(xii) not modify, waive or amend the terms of any Timeshare Loan unless a default on such Timeshare Loan has occurred or is imminent or unless such modification, amendment or waiver will not: (i) alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest under, or any other terms of, such Timeshare Loan, (iii) adversely affect the Timeshare Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan will be made when due; provided, however, that the Servicer may make the modifications, amendments or waivers described in clause (i) through (iv) above, so long as such modifications, amendments or waivers are not made with respect to more than 2% of the Timeshare Loans by Aggregate Timeshare Loan Balance as of the end of the calendar month prior to such modification, amendment or waiver; provided, further, the Servicer may grant an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (i) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (ii) the value of such Timeshare Loan will be enhanced by such extension, provided that the Servicer will not (a) grant more than one extension per calendar year with respect to a Timeshare Loan, (b) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year;
(xiii) work with Obligors in connection with any transfer of ownership of a Timeshare Interest by an Obligor to another Person and the Servicer may consent to the Diamond - Collateral and Servicing Agreement #39303843 assumption by such Person of the Timeshare Loan related to such Timeshare Interest; provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (xii) above; and
(xiv) deliver such information and data to the Back-Up Servicer as is required hereunder.
(b) The duties For so long as a Diamond Resorts Entity controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) For so long as a Diamond Resorts Entity controls the Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Administrative Agent. For so long as a Diamond Resorts Entity controls the Association for a Resort, and a Diamond Resorts Entity is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Lenders, then it may only be amended or modified with the prior written consent of the ServicerAdministrative Agent, as which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely affect the Lenders, the Servicer shall send a copy of such amendment or modification to the Administrative Agent with the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(d) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through a Diamond Resorts Entity which materially adversely affects the Borrower’s agentinterest in such Timeshare Loan, shall includethe Servicer shall, without limitation:
within the earlier to occur of ten Business Days after receiving notice of such attachment or the respective lienholders’ action to foreclose on such lien, either (i) preparing and submitting cause such Lien to be released of claims torecord, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records provide the Collateral Agent with respect a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Transferred Loans Administrative Agent, in an amount and providing such reports in form reasonably acceptable to the Borrower, the Managing Agents and the Administrative Agent in respect of or (iii) provide the servicing of the Transferred Loans (including information relating to its performance under this Agreement) Administrative Agent with such other security as may be required hereunder or as the Borrower, any Managing Agent or the Administrative Agent may reasonably request;require.
(e) The Servicer shall: (i) promptly notify the Collateral Agent, the Lenders and the Administrative Agent of (A) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Subject Collateral, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Subject Collateral or the Servicer’s ability to service the same; (ii) at the request of Collateral Agent with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse Diamond - Collateral and Servicing Agreement #39303843 effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(f) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit any Person to, encumber, pledge or otherwise xxxxx x Xxxx (other than in the normal course of business) or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall use commercially reasonable efforts to keep the Reservation System operational, booksnot to dispose of the same and to allow the Collection the use of, records and access to, the Reservation System.
(g) The initial Servicer shall (i) notify the Administrative Agent and each of the Lenders ten days prior to any material amendment or change to the Collection Policy or the Underwriting Guidelines and (ii) obtain the Administrative Agent’s prior written consent (which consent will not be unreasonably withheld or delayed) for any material amendment or change; provided, that the Servicer may immediately implement any changes (and provide notice to the Administrative Agent subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer; and provided, further, that the Servicer shall deliver a copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to the Administrative Agent, each of the Lenders and the Collateral Agent with the Monthly Servicer Report to be delivered subsequent to the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii), (viii), (ix) and (x) of subsection (a) above, the Servicer will undertake such duties in the ordinary course in a manner similar and consistent with (or better than) the manner in which the Servicer sells or markets other information reasonably necessary Timeshare Interests it or advisable its Affiliates owns. In addition, in connection with the Servicer’s duties under (viii), (ix) and (x) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Interests related to the Timeshare Loans owned by the Borrower before it remarkets and sells Timeshare Interests of the same type owned by the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in Receivables Securitizations).
(i) To the extent that any Timeshare Interest related to a 60-Day Plus Delinquent Loan is not a Retained Asset and is remarketed, or that a Retained Asset is subsequently remarketed or otherwise sold, the Servicer agrees that it shall require that Liquidation Proceeds be in the form of cash only.
(j) [Reserved].
(k) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Interest underlying a Right-to-Use Loan that is 181 days past due or a Right-to-Use Loan that is less than 181 days past due but for the collection Servicer has determined should be “charged-off”, it will re-market such Timeshare Interest within 30 days from such 181st date or date of determination and deposit the Transferred Loans (including, without limitation, records adequate to permit proceeds therefrom into the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan)Collection Account within such 30-day time period; provided, however, that any Successor Servicer the foregoing 30-day requirement shall only be required not apply to recreate the Servicing Records of each prior Servicer Right-to-Use Loans that are subject to the extent such records have been delivered to it (1) the Servicemembers Civil Relief Diamond - Collateral and Servicing Agreement #39303843 Act of 2003, (2) where the related Obligor is a debtor in a format reasonably acceptable to such Successor Servicer;bankruptcy case, (3) where the related Obligor has demanded a UCC foreclosure or (4) where the related Obligor is a Foreign Obligor (other than Canadian Obligors).
(ivl) promptly delivering to Notwithstanding any discretion provided in the BorrowerCollection Policy, any Managing Agent or the Administrative Agentinitial Servicer hereby covenants that, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as Timeshare Property underlying a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights Mortgage Loan that is 181 days past due or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of a Mortgage Loan that is less than 181 days past due but for the Servicer has determined should be “charged-off”, it will forward the Mortgage Loan to perform its obligations hereunder; and
(ix) notifying outside legal counsel to commence foreclosure proceedings and it will re-market such Timeshare Property within 30-days following completion of foreclosure date and deposit the Borrower, each Managing Agent and proceeds therefrom into the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) reasonably expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderCollection Account within such 30-day time period.
Appears in 1 contract
Samples: Collateral and Servicing Agreement (Diamond Resorts International, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others and in accordance with the Accepted Servicing Practices.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent Lender Group in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder hereunder, under the Loan Agreement, or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, the Lender Group and the Collateral Custodian (if one has been appointed), from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent the Agent, or the Administrative Agent Collateral Custodian (if one has been appointed) may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent, for the benefit of the Lender Group;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business business, and its properties and all Transferred Loans and Collections with respect theretoCollections, except to the extent that the failure to so comply would not reasonably be expected to have a Material Adverse Effect;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty Borrower and the Collateral CustodianAgent,) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lendersthe Agent, each Hedge Counterparty and the Collateral Custodian Lender Group in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Secured PartiesAgent or the Lender Group, the Administrative Agent and nor the Collateral Custodian (if one has been appointed), shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be reasonably necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Agent and the Administrative Agent each Lender in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing the Agent or the Administrative Agent and each Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, each Lender and the Trustee, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent Agent, each Lender and the Trustee may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative AgentTrustee on behalf of the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodianother Secured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing the Agent and the Administrative Agent each Lender of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Agent, any other Secured Parties, Party nor the Administrative Agent and the Collateral Custodian Trustee shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Pledged Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Pledged Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Pledged Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Pledged Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Pledged Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Agent in respect of the servicing of the Transferred Pledged Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Pledged Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Pledged Loans (including, without limitation, records adequate to permit the identification of each new Transferred Pledged Loan and all Collections of and adjustments to each existing Transferred Pledged Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, the Backup Servicer and the Collateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent Agent, the Backup Servicer and the Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Pledged Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Pledged Loan is owned by the Borrower and pledged to the Administrative Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Pledged Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Pledged Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Pledged Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Administrative Agent and the Collateral CustodianSecured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Administrative Agent and the Collateral Custodian Secured Parties in the Transferred Pledged Loans, (B) the collectibility of any Transferred Pledged Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Pledged Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Agent, the Backup Servicer (unless it shall succeed to the obligations of Servicer) and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Pledged Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder. The Borrower, as initial Servicer, hereby confirms to each of the other parties hereto that all actions of the Borrower taken under this Article VII and under the Lockbox Agreement and the Intercreditor Agreement shall be in its capacity as initial Servicer hereunder and not in its individual capacity.
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Deal Agent and each Lender Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Deal Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Deal Agent or and each Lender Agent and the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Deal Agent or and the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Deal Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral CustodianSecured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Deal Agent and the Collateral Custodian other Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Deal Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that none of the Deal Agent, any other Secured Parties, the Administrative Agent and Party nor the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Duties and Responsibilities of the Servicer. (a) The In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, perform or cause to be takenperformed through sub- KL2 2878899.10 servicers, all such actions as may be necessary or advisable to service, administer the following servicing and collect Transferred Loans from time to time on behalf of collection activities in accordance with the Borrower and as the Borrower’s agent.
(b) The duties of the Servicer, as the Borrower’s agent, shall include, without limitationServicing Standard:
(i) preparing perform standard accounting services and submitting of claims to, and post-billing liaison with, Obligors on Transferred general record keeping services with respect to the Timeshare Loans;
(ii) maintaining all necessary Servicing Records respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Transferred Timeshare Loans;
(iv) contact Obligors to effect collection and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and providing such reports doing so by any lawful means, including but not limited to (A) mailing of routine past due notices, (B) preparing and mailing collection letters, (C) contacting delinquent Obligors by telephone to encourage payment, and (D) mailing of reminder notices to delinquent Obligors;
(v) report tax information to Obligors and taxing authorities to the Borrower, extent required by law;
(vi) take such other action as may be necessary or appropriate in the Managing Agents discretion of the Servicer for the purpose of collecting and transferring to the Administrative Agent Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Servicer’s accounts in respect of the servicing Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture;
(vii) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Transferred Loans (including information relating Issuer and to its performance under this Agreement) be held as may be required hereunder or part of the Trust Estate for such period of time as the BorrowerServicer deems it advisable to do so, and to manage, lease or rent, encumber and sell such Nonfinancial Assets, so long as the Servicer acts under the reasonable belief that it is doing so in the best interests of the Issuer, and to deposit any Managing Retained Asset Proceeds in the Collection Account;
(viii) remarketing Timeshare Interests;
(ix) arranging for Liquidations of Timeshare Properties and Right-to-Use Interests related to 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans whether following repossession, foreclosure or otherwise;
(xi) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the purchase and substitution obligation of the Depositor under the Sale Agreement; KL2 2878899.10
(xii) not modify, waive or amend the terms of any Timeshare Loan unless a default on such Timeshare Loan has occurred or is imminent or unless such modification, amendment or waiver will not: (i) alter the interest rate on or the principal balance of such Timeshare Loan, (ii) shorten the final maturity of, lengthen the timing of payments of either principal or interest under, or any other terms of, such Timeshare Loan, (iii) adversely affect the Timeshare Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan will be made when due; provided, however, that the Servicer may make the modifications, amendments or waivers described in clause (i) through (iv) above, so long as such modifications, amendments or waivers are not made with respect to more than 2% of the Timeshare Loans by Aggregate Loan Balance as of the end of the calendar month prior to such modification, amendment or waiver; provided, further, the Servicer may grant an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (i) such Timeshare Loan is in default or default on such Timeshare Loan is likely to occur in the foreseeable future, and (ii) the value of such Timeshare Loan will be enhanced by such extension, provided that the Servicer will not (a) grant more than one extension per calendar year with respect to a Timeshare Loan, (b) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year or (c) grant an extension that would cause the stated maturity of a Timeshare Loan to be later than 24 months prior to the Stated Maturity;
(xiii) work with Obligors in connection with any transfer of ownership of a Timeshare Interest by an Obligor to another Person and the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Interest; provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in (xii) above; and
(xiv) deliver such information and data to the Back-Up Servicer as is required under the Back-Up Servicing Agreement.
(b) For so long as a Diamond Resorts Entity controls the Resorts, the Servicer shall use commercially reasonable best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) For so long as a Diamond Resorts Entity controls the Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort at all times shall be reasonably satisfactory to the Administrative Agent. For so long as a Diamond Resorts Entity controls the Association for a Resort, and a Diamond Resorts Entity is the manager, (i) if an amendment or modification to the related management contract and master marketing and sale contract materially and adversely affects the Noteholders or the Purchasers, then it may only be amended or modified with the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely KL2 2878899.10 affect the Noteholders or the Purchasers, the Servicer shall send a copy of such amendment or modification to the Administrative Agent with the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(d) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through a Diamond Resorts Entity which materially adversely affects the Issuer’s interest in such Timeshare Loan, the Servicer shall, within the earlier to occur of ten Business Days after receiving notice of such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Administrative Agent, in an amount and in form reasonably acceptable to the Administrative Agent or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably request;require.
(e) The Servicer shall: (i) promptly notify the Indenture Trustee, the Purchasers and the Administrative Agent of (A) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) maintaining comply in all respects, and implementing administrative shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same.
(f) Except as contemplated by the Transaction Documents, the Servicer shall not, and operating procedures shall not permit any Person to, encumber, pledge or otherwise xxxxx x Xxxx (other than in the normal course of business) or security interest in and to the Reservation System (including, without limitation, an ability to recreate Servicing Records evidencing the Transferred Loans all hardware, software and data in the event of the destruction of the originals respect thereof) and keeping furthermore agrees, and maintaining all documentsshall use commercially reasonable efforts to keep the Reservation System operational, booksnot to dispose of the same and to allow the Collection the use of, records and access to, the Reservation System.
(g) The Servicer shall (i) notify the Administrative Agent and each of the Purchasers ten days prior to any material amendment or change to the Collection Policy or the Underwriting Guidelines and (ii) obtain the Administrative Agent’s prior written consent (which consent will not be unreasonably withheld or delayed) for any material amendment or change; provided, that the Servicer may immediately implement any changes (and provide notice to the Administrative Agent subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer; and provided, further, that the Servicer shall deliver a copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to KL2 2878899.10 the Administrative Agent, each of the Purchasers and the Indenture Trustee with the Monthly Servicer Report to be delivered subsequent to the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii), (viii), (ix) and (x) of subsection (a) above, the Servicer will undertake such duties in the ordinary course in a manner similar and consistent with (or better than) the manner in which the Servicer sells or markets other information reasonably necessary Timeshare Interests it or advisable its Affiliates owns. In addition, in connection with the Servicer’s duties under (viii), (ix) and (x) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Interests related to the Timeshare Loans owned by the Issuer before it remarkets and sells Timeshare Interests of the same type owned by the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in Receivables Securitizations).
(i) To the extent that any Timeshare Interest related to a 60-Day Plus Delinquent Loan is not a Retained Asset and is remarketed, or that a Retained Asset is subsequently remarketed or otherwise sold, the Servicer agrees that it shall require that Liquidation Proceeds be in the form of cash only.
(j) [Reserved].
(k) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Interest underlying a Right-to-Use Loan that is 181 days past due or a Right-to-Use Loan that is less than 181 days past due but for the collection Servicer has determined should be “charged-off”, it will re-market such Timeshare Interest within 30 days from such 181st date or date of determination and deposit the Transferred Loans (including, without limitation, records adequate to permit proceeds therefrom into the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan)Collection Account within such 30-day time period; provided, however, that any Successor Servicer the foregoing 30-day requirement shall only be required not apply to recreate the Servicing Records of each prior Servicer Right-to-Use Loans that are subject to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing Agent or the Administrative Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent or the Administrative Agent from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and
(ix) notifying the Borrower, each Managing Agent and the Administrative Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim that is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or the Servicemembers Civil Relief Act of 2003, (2) reasonably expected to have where the related Obligor is a Material Adverse Effect; and
debtor in a bankruptcy case, (c3) The Borrower and Servicer hereby acknowledge that where the Secured Parties, related Obligor has demanded a UCC foreclosure or (4) where the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunderrelated Obligor is a Foreign Obligor (other than Canadian Obligors).
Appears in 1 contract
Duties and Responsibilities of the Servicer. (a) a. The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent.
(b) b. The duties of the Servicer, as the Borrower’s agent, shall include, without limitation:
(i) i. preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) . maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent the Required Lenders or the Administrative Facility Agent may reasonably request;
(iii) . maintaining and implementing administrative and operating procedures (including, without limitation, including an ability to recreate Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, including records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) . promptly delivering to the Borrower, any Managing Agent Lender or the Administrative Facility Agent, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing Agent Lender or the Administrative Facility Agent from time to time reasonably requestrequests;
(v) v. identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Facility Agent;
(vi) . complying in all material respects with the Credit and Collection Policy Management Manual in regard to each Transferred Loan;
(vii) . complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) . preserving and maintaining its the existence, rights, licenses, franchises and privileges of the Borrower as a corporation limited liability company in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation limited liability company and qualifying to and remaining authorized and licensed to perform obligations as of the Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, the Lenders, each Hedge Counterparty the Securities Custodian and the Collateral Custodian in the Transferred Loans, (B) the collectibility of any Transferred Loan, Loan or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) . notifying the Borrower, Borrower and each Managing Agent Lender and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that is or is threatened to be (1A) asserted by an Obligor with respect to any Transferred Loan; or (2B) reasonably expected to have a Material Adverse Effect;
x. promptly notifying the related Obligor of each Transferred Loan of the transfer of such Loan from the Originator to the Borrower;
xi. making applications for credit ratings and credit estimates as contemplated by this Agreement;
xii. making determinations on behalf of the Borrower to accept the transfer of Loans pursuant to the Purchase Agreement and to dispose of any Loans when and as permitted under this Agreement; and
(c) xiii. making determinations on behalf of the Borrower to request and from time to time prepay Advances hereunder in accordance with the terms hereof.
c. The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent Facility Agent, the Securities Custodian and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
d. The Borrower and the Facility Agent acknowledge that PCC has entered into the Advisory Agreement with the Subservicer and that the Subservicer thereunder is performing on behalf of the initial Servicer substantially all of the initial Servicer’s non-monetary duties and obligations hereunder. Notwithstanding such delegation, (i) PCC, as Servicer, shall remain liable and responsible for the performance of the duties and obligations of the Servicer pursuant to the terms hereof, (ii) such delegation shall not relieve the Servicer of its obligation to service the Transferred Loans and enforce the respective rights and interests of the Borrower and the Facility Agent, for the benefit of the Secured Parties, in and under each Transferred Loan in accordance with the terms and conditions of this Article VII, and (iii) PCC, as Servicer, shall be liable for the acts and omissions of the Subservicer in its performance of any duties or obligations of the Servicer under this Agreement. PCC, as Servicer, will be solely responsible for any compensation payable to the Subservicer. Upon the appointment of any Successor Servicer hereunder, any right, power or authority of the Servicer granted by PCC, as Servicer, to the Subservicer shall immediately terminate without further action by any party. Nothing contained in the Advisory Agreement shall be deemed to limit or modify this Agreement. Without the prior written consent of the Borrower and the Required Lenders, neither the Servicer nor any of its delegatees shall be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than the Subservicer pursuant to this Section 7.2(d); provided that the Backup Servicer in its capacity as Successor Servicer may delegate such duties or responsibilities in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Duties and Responsibilities of the Servicer. (a) The Servicer shall conduct the servicing, administration and collection of the Transferred Loans and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect Transferred Loans from time to time on behalf of the Borrower and as the Borrower’s agent. The Servicer will service, administer and make collections on the Transferred Loans with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable loans that it services for itself or others.
(b) The duties of the ServicerServicer (the “Servicing Duties”), as the Borrower’s agent, shall include, without limitation:
(i) preparing and submitting of claims to, and post-billing liaison with, Obligors on Transferred Loans;
(ii) maintaining all necessary Servicing Records with respect to the Transferred Loans and providing such reports to the Borrower, the Managing Agents Borrower and the Administrative Agent in respect of the servicing of the Transferred Loans (including information relating to its performance under this Agreement) as may be required hereunder or as the Borrower, any Managing Agent Borrower or the Administrative Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate re-create Servicing Records evidencing the Transferred Loans in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Transferred Loans (including, without limitation, records adequate to permit the identification of each new Transferred Loan and all Collections of and adjustments to each existing Transferred Loan); provided, however, that any Successor Servicer shall only be required to recreate re-create the Servicing Records of each prior Servicer to the extent such records have been delivered to it in a format reasonably acceptable to such Successor Servicer;
(iv) promptly delivering to the Borrower, any Managing the Agent or and the Administrative AgentCollateral Custodian, from time to time, such information and Servicing Records (including information relating to its performance under this Agreement) as the Borrower, such Managing the Agent or and the Administrative Agent Collateral Custodian may from time to time reasonably request;
(v) identifying each Transferred Loan clearly and unambiguously in its Servicing Records to reflect that such Transferred Loan is owned by the Borrower and pledged to the Administrative Agent, as agent for the Secured Parties;
(vi) complying in all material respects with the Credit and Collection Policy in regard to each Transferred Loan;
(vii) complying in all material respects with all Applicable Laws with respect to it, its business and properties and all Transferred Loans and Collections with respect thereto;
(viii) preserving and maintaining its existence, rights, licenses, franchises and privileges as a corporation in the jurisdiction of its organization, and qualifying and remaining qualified in good standing as a foreign corporation and qualifying to and remaining authorized and licensed to perform obligations as Servicer (including enforcement of collection of Transferred Loans on behalf of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral CustodianSecured Parties) in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect (A) the rights or interests of the Borrower, Lenders, each Hedge Counterparty the Agent and the Collateral Custodian Secured Parties in the Transferred Loans, (B) the collectibility of any Transferred Loan, or (C) the ability of the Servicer to perform its obligations hereunder; and;
(ix) notifying the Borrower, each Managing Agent Borrower and the Administrative Agent of any material action, suit, proceeding, dispute, offset, offset deduction, defense or counterclaim that (1) is or is threatened to be (1) asserted by an Obligor with respect to any Transferred Loan; or (2) would reasonably be expected to have a Material Adverse Effect; and
(c) The Borrower and Servicer hereby acknowledge that the Secured Parties, the Administrative Agent and the Collateral Custodian shall not have any obligation or liability with respect to any Transferred Loans, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
