Duties and Responsibilities of the Servicer. a. In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, 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 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 the Lockbox Account 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. arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below; viii. use reasonable best efforts to enforce the repurchase and substitution obligations under the Transfer Agreement and the Loan Sale Agreement; 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date; 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 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 reasonable 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. deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer (and upon the Backup Servicer's request, the Servicer shall deliver an unencrypted, secure file with all ACH instructions); and
Appears in 2 contracts
Samples: Indenture (Silverleaf Resorts Inc), Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. ) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase and substitution obligations under the Transfer Agreement and the Loan Sale Agreement;
(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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;
x. (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 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 ’s reasonable 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. ) deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer (and upon the Backup Servicer's ’s request, the Servicer shall deliver an unencrypted, secure file with all ACH instructions); and
(A) cause each Resort to be insured in the event of fire, earthquake, or other casualty for the full replacement value thereof and if the Resort is located in a designated flood plain, to maintain flood insurance in an amount not less than the maximum level available under the National Flood Insurance Act of 1968, as amended; (B) in respect of each Resort, maintain general liability insurance in such amounts generally acceptable in the industry; (C) cause each Resort’s insurance policies to remain in full force and effect with a generally acceptable insurance carrier; and (D) monitor the maintenance of the insurance coverage described in (A), (B), and (C) above with respect to each Resort and promptly obtain notice and otherwise acquire Knowledge of any lapse, cessation, decrease or other change in any such insurance coverage.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.6 hereof, the Servicer shall, in accordance with the Servicing Standard, promptly institute collection procedures, which may include, but are 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 promptly attempt to liquidate such foreclosure Property. The Servicer shall select the liquidation option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker’s commissions, foreclosure costs, fees and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2 hereof.
(i) To the extent that the Originator or an Affiliate thereof is selected to remarket a Foreclosure Property, the Servicer shall cause the Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in accordance with the Servicing Standard.
(ii) The Servicer (if Silverleaf or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all necessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Indenture Trustee. In such event, the Servicer shall direct the Indenture Trustee, directly or through its agents to exercise the remedies provided for in the Oak N’ Spruce Trust Agreement, in the Mortgage Note or in the other documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the related Timeshare Property shall be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Oak N’ Spruce Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Issuer, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort.
(iv) The Servicer may elect to liquidate through a public auction any Defaulted Timeshare Loans or related Timeshare Properties foreclosed upon or otherwise reacquired on behalf of the Indenture Trustee from the Obligors of the Defaulted Timeshare Loans. In the event the Servicer elects to so liquidate Defaulted Timeshare Loans or the related Timeshare Properties securing these Defaulted Timeshare Loans, the Originator may bid on such Defaulted Timeshare Loans or related Timeshare Properties and, to the extent it is the highest bidder, may acquire such Defaulted Timeshare Loans or related Timeshare Properties. Notwithstanding the foregoing, in connection with any liquidation of a Defaulted Timeshare Loan or the related Timeshare Property, the minimum bid the Servicer is permitted to accept, is equal to 15% of the then current retail market price for the related Timeshare Property, as shown in the Originator’s marketing for the related Unit or a comparable Unit.
(v) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) The Servicer may not sell any of the Defaulted Timeshare Loans that are included in the Trust Estate except as specifically permitted by this Indenture.
(d) For so long as Silverleaf or any of its Affiliates controls the Resorts, Servicer shall use commercially reasonable efforts to maintain or cause the Resorts to be maintained in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Silverleaf or any of its Affiliates controls the Association for a Resort, and Silverleaf or an Affiliate thereof is the manager, the related management contract may not be amended or modified if such amendment or modification is reasonably likely to have a material adverse affect on the interests of the Noteholder, except with the prior written consent of the Holders representing at least 66-2/3% of the Outstanding Note Balance, 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 Trust Estate from any Person claiming from and through Silverleaf or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Silverleaf shall, within the earlier to occur of ten (10) Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) 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 (ii) 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; (b) 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, petition or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (c) 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.
(h) Except as contemplated by the Transaction Documents, the Servicer (for so long as Silverleaf or any Affiliate thereof is the Servicer hereunder, otherwise Silverleaf in its individual capacity) shall not, and shall not permit the Managing Entity or the Orlando Breeze Resort Club to, encumber, pledge or otherwise xxxxx x xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Managing Entity and the Orlando Breeze Resort Club, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the members of each Association the use of, and access to, the Reservation System in accordance with the terms of the Management Agreement and the Orlando Breeze Management Agreement, as applicable.
(i) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall comply in all material respects with the Collection Policy in effect on the Closing Date (or as amended from time to time with the consent of the Holders representing at least 66-2/3% of the Outstanding Note Balance, if such amendment is reasonably likely to have material adverse affect on the interests of the Noteholders) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase and substitution obligations of Bluegreen under the Transfer Sale Agreement with respect to breaches of representations and warranties related to the Loan Sale AgreementTimeshare 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, 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 52% of the sum of the aggregate Initial Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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 4.5 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to remarket such Foreclosure Property. Any fees, including Remarketing Fees, in connection therewith shall constitute Liquidation Expenses and will be reimbursed to the Servicer in accordance with the terms of this Indenture.
(b) The Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Trust Estate except as specifically permitted by this Indenture.
(c) The Servicer shall, secure file 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. With the written consent of 66-2/3% of the Aggregate Outstanding Note Balance, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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 ACH instructionstimes shall be reasonably satisfactory to the Noteholders representing at least 66-2/3% of the Aggregate Outstanding Note Balance. 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, 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 Aggregate Outstanding Note Balance, 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 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 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.
(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 xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Aggregate Outstanding Note Balance) and with the terms of the Timeshare Loans.
(j) The Servicer shall not commingle funds constituting collections on the Timeshare Loans with any other funds of the Servicer or any of its Affiliates (other than the Issuer); and.
(k) The Servicer shall maintain all licenses and permits necessary to own its assets and to transact business in which it is engaged under all applicable law to the extent necessary so as not to have a material adverse effect on the Noteholders.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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 and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowLoans;
viii. (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 repurchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. (xii) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxi) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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(xiii) [Reserved];
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under pursuant to Section 5.16 hereof; and
(xv) (A) use commercially reasonable best efforts to cause all the Backup 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 Agreement;
xiii. deliver electronically Standard and (and partially encryptedB) any new or amended ACH instructions executed by an Obligor to the Backup 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 within five Business Days of such determination.
(and upon b) For so long as an Affiliate of the Backup Servicer's requestServicer controls the Resort, the Servicer shall use commercially reasonable best efforts to maintain our cause to maintain the 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 the 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 the Majority Noteholders 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 each Noteholder 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 Noteholders 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the use of, and access to, the Reservation System.
(g) The Servicer shall (i) notify the Indenture Trustee and each Noteholder ten days prior to any material amendment or change to the Collection Policy and (ii) obtain the prior written consent of the Majority Noteholders for any material amendment or change to the Collection Policy; provided, that the Servicer may immediately implement any changes to the Collection Policy (and provide notice to the Indenture Trustee and each Noteholder 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 an unencrypteda copy of any non-material amendments or changes to the Collection Policy to the Noteholders and 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), secure file (viii), (ix) and (xii) in subsection (a) above, the Servicer will, as soon as practical, undertake such duties in the ordinary course in a manner similar and consistent with all ACH instructions(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), (ix) and (xii) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Property related to Timeshare Loans owned by the Issuer before it remarkets and 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 Indenture Trustee and the Noteholders of any material modification, waiver or amendment of the terms of any Timeshare Loan effected pursuant to Section 5.03(a)(xi) hereof.
(k) The Servicer shall, on behalf of the Issuer, maintain the perfection and priority of the security interest Granted hereunder and, to the extent transfers under the Sale Agreement are characterized as a loan, the security interest Granted therein.
(l) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Property underlying a Timeshare Loan that is 181 days past due or a Timeshare Loan that is less than 181 days past due but for which the Servicer has determined should be “charged-off”, it will forward the Timeshare Loan to outside legal counsel to commence foreclosure proceedings and it will re-market such Timeshare Property within 30 days following the completion of foreclosure date and deposit the proceeds therefrom into the Collection Account within such 30-day time period.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Agreement and Agreements or the Loan Sale Purchase Agreement;
(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 or 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 51% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;Balance.
x. (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 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;; and
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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 ) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii. deliver electronically (and partially encrypted) delivery of any new or amended ACH instructions Forms executed by an Obligor to the Backup Custodian to be held as part of the related Timeshare Loan File.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.5 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 (and upon each, a "Foreclosure Property"). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to remarket such Foreclosure Property. The Issuer acknowledges that the Club Originator or the Aruba Originator may be in the best position to remarket the Foreclosure Property in connection with such Originator's overall marketing program for the applicable Timeshare Project. The Servicer shall select the remarketing option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker's commissions, foreclosure costs, sales and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that one of the Originators or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause such Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in the ordinary course in a manner similar and consistent with (or better than) the manner in which it remarkets or sells other timeshare properties it or its Affiliates owns.
(ii) The Servicer (if Bluegreen Corporation or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Club Trustee. In such event, the Servicer shall direct the Club Trustee, directly or through its agents to exercise the remedies provided for in the Club Trust Agreement, in the Mortgage Note themselves or in the other Club documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the Owner Beneficiary Rights will be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Club Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Trust, the Owner Trustee, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort or the Club.
(iv) The Servicer agrees that it shall require that any liquidation Proceeds be in the form of cash only.
(c) In connection with the Servicer's performance of its duties under Section 5.3(b), (i) 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 timeshare properties it or its Affiliates owns and (ii) the Servicer may not sell any of the Defaulted Timeshare Loans that are an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(d) For so long as Bluegreen or any of its Affiliates 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).
(e) 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 Holders 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 may be amended or modified only with the prior written consent of the Holders 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 (10) Business Days after such attachment or the respective lienholders' action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) 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 (ii) 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; and(b) 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 (c) 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.
(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 Lien or security interest in and to the Reservation System (xxxxxxxxx, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in effect on the Closing Date (or, as amended from time to time with the consent of the Holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) remarketing Timeshare Property;
(viii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowLoans;
viii. (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 repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. work (xii) working with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxi) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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(xiii) [Reserved];
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under pursuant to Section 5.16 hereof; and
(xv) (A) use commercially reasonable best efforts to cause all the Backup 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 Agreement;
xiii. deliver electronically Standard and (and partially encryptedB) any new or amended ACH instructions executed by an Obligor to the Backup 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.
(and upon b) For so long as an Affiliate of the Backup Servicer's requestServicer controls the Resorts, the Servicer shall deliver 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 unencryptedAffiliate of the Servicer controls the Resort Association for a Resort, secure file 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.
(a) 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.
(b) 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 ACH instructions); andrespects, 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.
(c) 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collections the use of, and access to, the Reservation System.
Appears in 1 contract
Samples: Indenture (Diamond Resorts Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Originator under the Transfer Agreement and the Loan Sale Agreement;
(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 5% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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. ) deliver electronically (and partially encrypted) any new or amended ACH instructions Forms executed by an Obligor to the Backup Custodian to be held as part of the related Timeshare Loan File; and
(A) to cause each Resort to be insured in the event of fire, earthquake, or other casualty for the full replacement value thereof and if the Resort is located in a designated flood plain, to maintain flood insurance in an amount not less than the maximum level available under the National Flood Insurance Act of 1968, as amended; (B) in respect of each Resort, to maintain general liability insurance in such amounts generally acceptable in the industry; (C) to cause each Resort’s insurance policies to remain in full force and effect with a generally acceptable insurance carrier; and (D) to monitor the maintenance of the insurance coverage described in (A), (B), and (C) above with respect to each Resort and promptly obtain notice and otherwise acquire Knowledge of any lapse, cessation, decrease or other change in any such insurance coverage.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.6 hereof, the Servicer shall, in accordance with the Servicing Standard, promptly institute collection procedures, which may include, but are not limited to, cancellation, forfeiture, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (and upon each, a “Foreclosure Property”). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to liquidate such foreclosure Property. The Servicer shall select the liquidation option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker’s commissions, foreclosure costs, fees and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that the Originator or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause the Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in accordance with the Servicing Standard.
(ii) The Servicer (if Silverleaf or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Indenture Trustee. In such event, the Servicer shall direct the Indenture Trustee, directly or through its agents to exercise the remedies provided for in the Oak N’ Spruce Trust Agreement, in the Mortgage Note or in the other documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the related Timeshare Property shall be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Oak N’ Spruce Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Issuer, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort.
(iv) The Servicer may elect to liquidate at a public or private sale any Defaulted Timeshare Loans or related Timeshare Properties foreclosed upon or otherwise reacquired on behalf of the Indenture Trustee from the obligors of the Defaulted Timeshare Loans. In the event the Servicer elects to so liquidate Defaulted Timeshare Loans or the related Timeshare Properties securing these Defaulted Timeshare Loans, the Originator may bid on such Defaulted Timeshare Loans or related Timeshare Properties so long as the Originator pays an amount at least equal to the net fair market value of each related Timeshare Property, as determined by the Originator in its commercially reasonable judgment, which shall in no event be less than fifteen percent (15%) of the original acquisition price paid for the Timeshare Property by the Obligor under the Defaulted Timeshare Loan.
(v) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) The Servicer may not sell any of the Defaulted Timeshare Loans that are included in the Collateral except as specifically permitted by this Indenture.
(d) For so long as Silverleaf or any of its Affiliates controls the Resorts, Servicer shall use commercially reasonable efforts to maintain or cause the Resorts to be maintained in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Silverleaf or any of its Affiliates controls the Association for a Resort, and Silverleaf or an Affiliate thereof is the manager, the related management contract may not be amended or modified if such amendment or modification is reasonably likely to have a material adverse affect on the interests of the Noteholder, except with the prior written consent of the Holders 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, or after obtaining a Rating Agency Confirmation.
(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 Silverleaf or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Silverleaf shall, within the earlier to occur of ten (10) Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Collateral, or any material part thereof, and (ii) 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 Collateral or the Servicer’s ability to service the same; and(b) 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, petition or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (c) 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.
(h) Except as contemplated by the Transaction Documents, the Servicer (for so long as Silverleaf or any Affiliate thereof is the Servicer hereunder, otherwise Silverleaf in its individual capacity) shall not, and shall not permit the Managing Entity or the Orlando Breeze Resort Club to, encumber, pledge or otherwise xxxxx x xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Managing Entity and the Orlando Breeze Resort Club, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the members of each Association the use of, and access to, the Reservation System in accordance with the terms of the Management Agreement and the Orlando Breeze Management Agreement, as applicable.
(i) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall comply in all material respects with the Collection Policy in effect on the Closing Date (or as amended from time to time with the consent of the holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes if such amendment is reasonably likely to have material adverse affect on the interests of the Noteholders or after obtaining a Rating Agency Confirmation) and with the terms of the Timeshare Loans.
(j) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall provide a minimum of 10 days’ prior notice to the Rating Agency of any purchase or acquisition by the Servicer of (i) another entity (or the stock, membership interests, or other similar interests therein) or (ii) any resort or other property, if the related purchase price exceeds $5 million.
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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 34 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, 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 (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 2% 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% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions)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 Servicer may not sell any of the Foreclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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 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 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.
(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 gxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) for the purpose of collecting and transferring to the Indenture Trustee Collateral Agent for deposit into the Collection Account all payments received by the Servicer or remitted to the Lockbox Account or the Credit Card Account 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 IndentureNote Purchase Agreement;
(vii. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Loan Sale AgreementTimeshare 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 NoteholdersNoteholder, (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, 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 at the time of such modification, waiver or amendment exceeds 51.5% of the sum of the aggregate Cut-Off then Aggregate Closing Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateCollateral Balance;
x. (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 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 ’s reasonable 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 TrusteeCollateral Agent and the Noteholder;
(xii. deliver ) 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 Note Purchase Agreement 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”). deliver electronically (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 partially encrypted) any new or amended ACH instructions executed by an Obligor pursuant to the Backup Servicer (Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Backup ServicerServicer shall be paid by the Servicer to the Remarketing Agent. Prior to taking any action with respect to a Defaulted Timeshare Loan pursuant to this Section 5.3(a)(xiii) or Section 5.3(a)(vii) which is not in compliance with the existing Servicing Standard, Credit and Collection Policy, this Agreement and/or the Remarketing Agreement, the Servicer shall provide written notice to the Noteholder. The Servicer shall not take any action not in compliance with such standards, policies and/or agreements with respect to any of the Defaulted Timeshare Loans pursuant to Section 5.3(a)(vii) or (xiii); provided that, if the Servicer receives reasonable written instructions from the Noteholder as to the action to be taken with respect to any of the Defaulted Timeshare Loans with respect to the matters covered by Sections 5.3(a)(vii) or (xiii), the Servicer shall act in accordance with such reasonable written instructions; provided, further, that nothing herein shall restrict the Servicer from taking any actions permitted to be taken by the Servicer pursuant to the proviso to Section 5.3(a)(ix). At the Noteholder's request, the Servicer shall deliver consult with the Noteholder as to the proposed course of action to be taken with respect to Defaulted Timeshare Loans. At the Noteholder's request, the Servicer shall consult with the Noteholder as to the proposed course of action to be taken with respect to Defaulted Timeshare Loans.
(b) The Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Timeshare Loans Collateral except for or as specifically permitted by this Note Purchase Agreement.
(c) The Servicer shall, secure file 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 merchant services provider 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. With the written consent of the Noteholder, the Collateral Agent shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall instruct the Collateral Agent 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 Noteholder, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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, related management contract and master marketing and sale contract (if applicable) for each Resort at all ACH instructions)times shall be reasonably satisfactory to the Noteholder. 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 Noteholder only with the prior written consent of the Noteholder, 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 Note 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 Collateral Agent 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 Collateral Agent, in an amount and in form reasonably acceptable to the Collateral Agent or (iii) provide the Collateral Agent with such other security as the Noteholder or the Collateral Agent may reasonably require.
(g) The Servicer shall: (i) promptly notify the Noteholder and the Collateral Agent of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Timeshare Loans 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 Timeshare Loans Collateral or the Servicer’s ability to service the same; and(ii) at the request of the Noteholder or the 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 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.
(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 xxxxx x Xxxx or security interest (a non-exclusive license to use the Reservation System shall not be deemed an encumbrance, pledge or Lien or security interest) in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in effect on the initial Transfer Date (or, as amended from time to time with the consent of the Noteholder) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Note Purchase Agreement (Stratstone/Bluegreen Secured Income Fund, LLC)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 (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 2% 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% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions)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 Servicer may not sell any of the Foreclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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 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 36 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.
(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 gxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Samples: Indenture (BFC Financial Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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 IndentureIndenture and Servicing Agreement;
(vii. ) remarket Timeshare Properties and Vacation Interests;
(viii) arrange for Liquidations of Timeshare Properties and Vacation Interests related to Defaulted Timeshare Loans and the remarketing Loans;
(ix) dispose of such Timeshare Properties as provided in Section 5.3(b) belowrelated to the Timeshare Loans whether following repossession, foreclosure or otherwise;
viii. (x) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 effect 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. (xii) work with Obligors in connection with any transfer of ownership of a Timeshare Property or Vacation Interest by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)or Vacation 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 (ixxi) above;
xi. (xiii) (A) cause all the timeshare or fractional interest resorts operated by MORI (including but not limited to those under the Marriott Vacation Club, Xxxx-Xxxxxxx Club and Grand Residences brands) 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 Custodian Fees policy limits of such coverage or the Lockbox Fees areServicer has determined, in accordance with the Servicer's reasonable business judgmentServicing Standard, no longer commercially reasonable, use that such coverage is not available on commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bankterms, as applicable. Any such successor shall be reasonably acceptable provide written notice to the Indenture TrusteeIssuer within five Business Days of such determination;
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required pursuant to Section 5.19 hereof;
(xv) on behalf of the Issuer, maintain the perfection and priority of the security interest Granted hereunder;
(xvi) observe and perform its obligations under the Backup Servicing Control Account Intercreditor Agreement and the Control Agreement;
xiii. deliver electronically (, monitor the Control Accounts and partially encrypted) any new or amended ACH instructions executed by an Obligor identify and segregate all funds in the Control Accounts and direct the Control Account Bank to remit all collections on the Timeshare Loans to the Backup Collection Account; and
(xvii) (1) on behalf of the Issuer, monitor the Hedge Agreements and any amounts on deposit in the Hedge Reserve Account and to prepare such data and information as may be required by the Issuer, from time to time, to determine whether the Hedge Requirements are being satisfied, (2) to the extent the Hedge Reserve Option is exercised and not revoked, provide data and information to the Administrative Agent three (3) Business Days prior to each Hedge Determination Date and in the Monthly Servicer Report regarding amounts on deposit in the Hedge Reserve Account and the Hedge Trigger Events and (3) to the extent the Hedge Reserve Option is exercised, on each Funding Date and upon on each Hedge Determination Date (x) obtain two bids from broker/dealers approved by the Backup Administrative Agent regarding the purchase price of a Hedge Agreement in the form of an interest rate cap that meets the requirements of Section 3.03(b) for a notional amount equal to 95% of the Unhedged Outstanding Note Balance and is based on the Hedge Amortization Schedule and (y) provide the bids to the Issuer and the Administrative Agent. In connection with the Servicer's request’s duties under (vii), (viii) and (ix) above, the Servicer will, as soon as practical, 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 timeshare properties or Vacation Interests it or its Affiliates owns. To the extent that any Timeshare Property or Vacation Interest 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.
(b) For so long as MORI or an affiliate of MORI is the on-site manager of the Resorts, the Servicer shall deliver use commercially best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) 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 unencryptedaffiliate of MORI which materially and adversely affects the Issuer’s interest in such Timeshare Loan, secure file the Servicer shall, within the earlier to occur of 10 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 form reasonably acceptable to the Administrative Agent or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably require.
(d) The Servicer shall: (i) promptly notify the Indenture Trustee 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 the Servicer becomes aware after the date hereof pending or threatened against or affecting the 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 ACH instructionsmaterial respects, and shall cause all Affiliates to comply in all material 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.
(e) The Servicer agrees (so long as it is MORI or an Affiliate thereof) that it shall use commercially reasonable efforts to keep the reservation system for the MVC Trust (including, without limitation, all hardware, software and data in respect thereof); and, operational (including by virtue of necessary hardware and software updates and/or upgrades), not to dispose of the same and to allow the MVC Trust the use of, and access to, such reservation system.
(f) The Servicer shall notify the Indenture Trustee and Administrative Agent ten days prior to any material amendment or change to such portion of the Credit and Collection Policy relating to the servicing and collection process of Timeshare Loans that are eligible to be acquired by the Issuer, and shall have received written consent from the Administrative Agent (such consent to not be unreasonably withheld or delayed).
(g) The Servicer agrees (so long as it is MORI or an Affiliate thereof), that it shall, and shall cause its affiliates to perform and observe in all material respects the obligations and duties under the Marriott License Agreement.
Appears in 1 contract
Samples: Third Amended and Restated Indenture and Servicing Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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 effect on the Noteholders, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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 (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 52% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 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.
(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 condition (ordinary wear and tear excepted).
(d) 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 Required Noteholders. For so long as Bluegreen or any of its Affiliates controls the Association for a Resort, and Bluegreen or an unencryptedAffiliate thereof is the manager, secure file (i) if an amendment or modification to the related management contract materially and adversely affects the Noteholders, then it may only be amended or modified with the prior written consent of the Required Noteholders, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract does not materially and adversely affect the Noteholders, Bluegreen shall send a copy of such amendment or modification to the Funding Agents with the quarterly reports required to be delivered pursuant to the Note Funding Agreement 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 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 Indenture Trustee may reasonably require.
(f) The Servicer shall: (i) promptly notify the Indenture Trustee and the Funding Agents 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 or any Funding 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 effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all ACH instructions)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, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each Timeshare Loan. The Servicer shall (i) notify the Funding Agents ten days prior to any material amendment or change to the Collection Policy or the Credit Policy and (ii) obtain the Required Noteholders’ prior written consent (which consent will not be unreasonably withheld or delayed) to any material amendment or change to the Collection Policy or the Credit Policy that will affect any Timeshare Loan in the Trust Estate; andprovided, that the Servicer may immediately implement any changes (and provide notice to the Funding Agents subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer.
(i) The Servicer shall comply in all material respects with 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 Timeshare Loans owned by it or its Affiliates.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Issuer and to be held as part of the Trust Estate 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 Issuer, 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 Defaulted 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowwhether following repossession, foreclosure or otherwise;
viii. (xi) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Depositor under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xii) not modify, waiving waive or amending amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which unless a default on such Timeshare Loan has occurred or is imminent and or unless such modification, amendment or waiver will not 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 interestinterest under, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on the NoteholdersLoan, (iii) adversely affect the Timeshare Property Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall 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 a single an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (Ai) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (Bii) the value of such Timeshare Loan will be enhanced by such extension; provided, further, provided that the Servicer shall will not be permitted (a) grant more than one extension per calendar year with respect to modifya Timeshare Loan, waive or amend the terms of any (b) grant an extension for more than one calendar month with respect to a Timeshare Loan if in any calendar year or (c) grant an extension that would cause the sum stated maturity of the Cut-Off Date Loan Balance of such a Timeshare Loan and to be later than 24 months prior to the Cut-Off Date Loan Balances of all other Timeshare Loans for which the Servicer has modified, waived or amended the terms thereof exceeds 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateStated Maturity;
x. (xiii) work with Obligors in connection with any transfer of ownership of a Timeshare Property Interest by an Obligor to another Person (to the extent permitted), whereby and the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxii) above;; and
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under the Backup Back-Up Servicing Agreement;.
xiii. deliver electronically (and partially encryptedb) any new or amended ACH instructions executed by an Obligor to For so long as a Diamond Resorts Entity controls the Backup Servicer (and upon the Backup Servicer's requestResorts, 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 or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably 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) 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) Except as contemplated by the Transaction Documents, 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collection the use of, 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 an unencrypteda copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to the Administrative Agent, secure file each of the Purchasers and the Indenture Trustee with all ACH instructionsthe 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 Timeshare Interests it or 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) The Servicer agrees that, with respect to Timeshare Loan Files related to Eligible In-Transit Loans, it shall (i) maintain and hold such Timeshare Loan Files for the exclusive benefit of the Indenture Trustee on behalf of the Noteholders and (ii) shall deliver such Timeshare Loan Files to the In-Transit Custodian as soon as practicable. Except as approved by the Administrative Agent, the Servicer shall not deliver possession of such Timeshare Loan Files to any Person other than the In-Transit Custodian.
(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 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 proceeds therefrom into the Collection Account within such 30-day time period; andprovided, however, that the foregoing 30-day requirement shall not apply to Right-to-Use Loans that are subject to the (1) the Servicemembers Civil Relief Act of 2003, (2) where the related Obligor is a debtor in a 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).
(l) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Property underlying a Mortgage Loan that is 181 days past due or 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 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 proceeds therefrom into the Collection Account within such 30-day time period.
Appears in 1 contract
Samples: Indenture (Diamond Resorts Corp)
Duties and Responsibilities of the Servicer. a. In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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 IndentureAgreement;
(vii. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b7.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations under of the Transfer Agreement applicable Originator with respect to breaches of representations and warranties related to the Loan Sale AgreementTimeshare 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 effect on the NoteholdersBuyer, (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, 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 5% of the sum one percent (1%) of the aggregate Cut-Off off Date Loan Balances of all Sale Date Loan Pools purchased by the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBuyer;
x. (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 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, such Person must be an Eligible Borrower and satisfy the Credit Policy then in effect, and 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 ’s reasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Deposit Account Control Agreement relating to the Lockbox Agreement Bank to replace the Custodian or the Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture TrusteeBuyer;
(xii. deliver ) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii. deliver electronically (and partially encrypted) any new in the event that a Defaulted Timeshare Loan is not or amended ACH instructions executed by an Obligor cannot be assigned from the Buyer to the Backup Seller pursuant to Section 6.8 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 (and upon each, a “Foreclosure Property”). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions); andand 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.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) in the Servicer’s sole discretion, to exercise the power and authority of the Owner Trustee delegated to the Servicer pursuant to Section 5.7 of the Trust Agreement with respect to Retained Assets, to manage, market, rent and sell any Retained Assets in accordance with Section 5.7 of the Trust Agreement, 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 Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowLoans;
viii. (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 repurchase purchase and substitution obligations obligation of the Depositor under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xii) not modify, waiving waive or amending amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which unless a default on such Timeshare Loan has occurred or is imminent and or unless such modification, amendment or waiver will not 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 NoteholdersLoan, (iii) adversely affect the Timeshare Property Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall 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 Mortgage 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 a single an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (Ai) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (Bii) the value of such Timeshare Loan will be enhanced by such extension; provided, further, provided that the Servicer shall will not be permitted (a) grant more than one extension per calendar year with respect to modifya Timeshare Loan, waive or amend the terms of any (b) grant an extension for more than one calendar month with respect to a Timeshare Loan if in any calendar year or (c) grant an extension that would cause the sum stated maturity of the Cut-Off Date Loan Balance of such a Timeshare Loan and to be later than 24 months prior to the Cut-Off Date Loan Balances of all other Timeshare Loans for which the Servicer has modified, waived or amended the terms thereof exceeds 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;Stated Maturity; and
x. work (xiii) working with Obligors in connection with any transfer of ownership of a Timeshare Property Interest by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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.
(b) 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 Timeshare Interests it or its Affiliates owns.
xi. to (c) To the extent that the Custodian Fees any Timeshare Interest related to a Defaulted Timeshare Loan is not a Retained Asset and is remarketed, or the Lockbox Fees are, in the Servicer's reasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement that a Retained Asset is subsequently remarketed 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. deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer (and upon the Backup Servicer's requestotherwise sold, the Servicer agrees that it shall deliver an unencrypted, secure file with all ACH instructions); andrequire that Liquidation Proceeds be in the form of cash only.
Appears in 1 contract
Samples: Indenture (Sunterra Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Originator under the Transfer Agreement and the Loan Sale Agreement;
(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 5% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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. ) deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer; and
(A) to cause each Resort to be insured in the event of fire, earthquake, or other casualty for the full replacement value thereof and if the Resort is located in a designated flood plain, to maintain flood insurance in an amount not less than the maximum level available under the National Flood Insurance Act of 1968, as amended; (B) in respect of each Resort, to maintain general liability insurance in such amounts generally acceptable in the industry; (C) to cause each Resort’s insurance policies to remain in full force and effect with a generally acceptable insurance carrier; and (D) to monitor the maintenance of the insurance coverage described in (A), (B), and (C) above with respect to each Resort and promptly obtain notice and otherwise acquire Knowledge of any lapse, cessation, decrease or other change in any such insurance coverage.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.6 hereof, the Servicer shall, in accordance with the Servicing Standard, promptly institute collection procedures, which may include, but are not limited to, cancellation, forfeiture, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (and upon each, a “Foreclosure Property”). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to liquidate such foreclosure Property. The Servicer shall select the liquidation option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker’s commissions, foreclosure costs, fees and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that the Originator or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause the Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in accordance with the Servicing Standard.
(ii) The Servicer (if Silverleaf or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Indenture Trustee. In such event, the Servicer shall direct the Indenture Trustee, directly or through its agents to exercise the remedies provided for in the Oak N’ Spruce Trust Agreement, in the Mortgage Note or in the other documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the related Timeshare Property shall be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Oak N’ Spruce Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Issuer, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort.
(iv) The Servicer may elect to liquidate at a public or private sale any Defaulted Timeshare Loans or related Timeshare Properties foreclosed upon or otherwise reacquired on behalf of the Indenture Trustee from the obligors of the Defaulted Timeshare Loans. In the event the Servicer elects to so liquidate Defaulted Timeshare Loans or the related Timeshare Properties securing these Defaulted Timeshare Loans, the Originator may bid on such Defaulted Timeshare Loans or related Timeshare Properties so long as the Originator pays an amount at least equal to the net fair market value of each related Timeshare Property, as determined by the Originator in its commercially reasonable judgment, which shall in no event be less than fifteen percent (15%) of the original acquisition price paid for the Timeshare Property by the Obligor under the Defaulted Timeshare Loan.
(v) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) The Servicer may not sell any of the Defaulted Timeshare Loans that are included in the Collateral except as specifically permitted by this Indenture.
(d) For so long as Silverleaf or any of its Affiliates controls the Resorts, Servicer shall use commercially reasonable efforts to maintain or cause the Resorts to be maintained in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Silverleaf or any of its Affiliates controls the Association for a Resort, and Silverleaf or an Affiliate thereof is the manager, the related management contract may not be amended or modified if such amendment or modification is reasonably likely to have a material adverse affect on the interests of the Noteholder, except with the prior written consent of the Holders 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, or after obtaining a Rating Agency Confirmation.
(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 Silverleaf or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Silverleaf shall, within the earlier to occur of ten (10) Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Collateral, or any material part thereof, and (ii) 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 Collateral or the Servicer’s ability to service the same; and(b) 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, petition or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (c) 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.
(h) Except as contemplated by the Transaction Documents, the Servicer (for so long as Silverleaf or any Affiliate thereof is the Servicer hereunder, otherwise Silverleaf in its individual capacity) shall not, and shall not permit the Managing Entity or the Orlando Breeze Resort Club to, encumber, pledge or otherwise xxxxx x xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Managing Entity and the Orlando Breeze Resort Club, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the members of each Association the use of, and access to, the Reservation System in accordance with the terms of the Management Agreement and the Orlando Breeze Management Agreement, as applicable.
(i) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall comply in all material respects with the Collection Policy in effect on the Closing Date (or as amended from time to time with the consent of the holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes if such amendment is reasonably likely to have material adverse affect on the interests of the Noteholders or after obtaining a Rating Agency Confirmation) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Originator under the Transfer Agreement and the Loan Sale Agreement;
(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 51% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;Balance.
x. (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 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 ’s reasonable 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. ) deliver electronically (and partially encrypted) any new or amended ACH instructions Forms executed by an Obligor to the Backup Custodian to be held as part of the related Timeshare Loan File; and
(A) to cause each Resort to be insured in the event of fire, earthquake, or other casualty for the full replacement value thereof and if the Resort is located in a designated flood plain, to maintain flood insurance in an amount not less than the maximum level available under the National Flood Insurance Act of 1968, as amended; (B) in respect of each Resort, to maintain general liability insurance in such amounts generally acceptable in the industry; (C) to cause each Resort’s insurance policies to remain in full force and effect with a generally acceptable insurance carrier; and (D) to monitor the maintenance of the insurance coverage described in (A), (B), and (C) above with respect to each Resort and promptly obtain notice and otherwise acquire Knowledge of any lapse, cessation, decrease or other change in any such insurance coverage.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.5 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 (and upon each, a “Foreclosure Property”). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to liquidate such foreclosure Property. The Servicer shall select the liquidation option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker’s commissions, foreclosure costs, fees and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that the Originator or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause the Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in accordance with the Servicing Standard.
(ii) The Servicer (if Silverleaf or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Indenture Trustee. In such event, the Servicer shall direct the Indenture Trustee, directly or through its agents to exercise the remedies provided for in the Oak N’ Spruce Trust Agreement, in the Mortgage Note or in the other documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the related Timeshare Property shall be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Oak N’ Spruce Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Issuer, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort.
(iv) The Servicer may elect to liquidate at a public or private sale any Defaulted Timeshare Loans or related Timeshare Properties foreclosed upon or otherwise reacquired on behalf of the Indenture Trustee from the obligors of the Defaulted Timeshare Loans. In the event the Servicer elects to so liquidate Defaulted Timeshare Loans or the related Timeshare Properties securing these Defaulted Timeshare Loans, the Originator may bid on such Defaulted Timeshare Loans or related Timeshare Properties so long as the Originator pays an amount at least equal to the net fair market value of each related Timeshare Property, as determined by the Originator in its commercially reasonable judgment, which shall in no event be less than fifteen percent (15%) of the original acquisition price paid for the Timeshare Property by the Obligor under the Defaulted Timeshare Loan.
(v) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) The Servicer may not sell any of the Defaulted Timeshare Loans that are included in the Collateral except for or as specifically permitted by this Indenture.
(d) For so long as Silverleaf or any of its Affiliates controls the Resorts, the Servicer shall use commercially reasonable efforts to maintain or cause the Resorts to be maintained in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Silverleaf or any of its Affiliates controls the Association for a Resort, and Silverleaf or an Affiliate thereof is the manager, the related management contract may not be amended or modified if such amendment or modification is reasonably likely to have a material adverse affect on the interests of the Noteholder, except with the prior written consent of the Holders 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, or after obtaining a Rating Agency Confirmation.
(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 Silverleaf or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Silverleaf shall, within the earlier to occur of ten (10) Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Collateral, or any material part thereof, and (ii) 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 Collateral or the Servicer’s ability to service the same; and(b) 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, petition or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (c) 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.
(h) Except as contemplated by the Transaction Documents, the Servicer (for so long as Silverleaf or any Affiliate thereof is the Servicer hereunder, otherwise Silverleaf in its individual capacity) shall not, and shall not permit the Managing Entity to, encumber, pledge or otherwise gxxxx x xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Managing Entity, to use commercially reasonable efforts to keep the Reservation System Operational, not to dispose of the same and to allow the members of each Association the use of, and access to, the Reservation System in accordance with the terms of the Management Agreement.
(i) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall comply in all material respects with the Collection Policy in effect on the Closing Date (or, as amended from time to time with the consent of the holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes if such amendment is reasonably likely to have material adverse affect on the interests of the Noteholders or after obtaining a Rating Agency Confirmation) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Issuer and to be held as part of the Trust Estate 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 Issuer, 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 Defaulted 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowwhether following repossession, foreclosure or otherwise;
viii. (xi) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Depositor under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xii) not modify, waiving waive or amending amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which unless a default on such Timeshare Loan has occurred or is imminent and or unless such modification, amendment or waiver will not 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 interestinterest under, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on the NoteholdersLoan, (iii) adversely affect the Timeshare Property Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall will be made when due; provided, furtherhowever, that the Servicer may grant a single extension of make the final maturity of a Timeshare Loan if the Servicermodifications, amendments or waivers described in its reasonable discretion, determines that clause (Ai) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and through (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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;
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 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 (ixiv) above;
xi. , so long as such modifications, amendments or waivers are not made with respect to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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. deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer (and upon the Backup Servicer's request, the Servicer shall deliver an unencrypted, secure file with all ACH instructions); andmore than
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) remarketing Timeshare Property;
(viii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowLoans;
viii. (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 repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. work (xii) working with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxi) above;
xi. (xiii) working with the Property Trustee pursuant to the extent that the Custodian Fees or the Lockbox Fees areTitle Clearing Agreement, including without limitation, in the Servicer's reasonable 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 Trusteeconnection with any transfer of ownership of a Timeshare Property;
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under pursuant to Section 5.16 hereof; and
(xv) (A) use commercially reasonable best efforts to cause all the Backup 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 Agreement;
xiii. deliver electronically Standard and (and partially encryptedB) any new or amended ACH instructions executed by an Obligor to the Backup 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.
(and upon b) For so long as an Affiliate of the Backup Servicer's requestServicer controls the Resorts, the Servicer shall deliver 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 unencryptedAffiliate of the Servicer controls the Resort Association for a Resort, secure file 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 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.
(a) 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.
(b) 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 ACH instructions); andrespects, 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.
(c) 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collections the use of, and access to, the Reservation System.
Appears in 1 contract
Samples: Indenture (Diamond Resorts Corp)
Duties and Responsibilities of the Servicer. a. In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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 IndentureAgreement;
(vii. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b7.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations under of the Transfer Agreement applicable Originator with respect to breaches of representations and warranties related to the Loan Sale AgreementTimeshare 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 effect on the NoteholdersBuyer, (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, 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 5% of the sum one percent (1%) of the aggregate Cut-Off off Date Loan Balances of all Sale Date Loan Pools purchased by the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBuyer;
x. (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 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, such Person must be an Eligible Borrower and satisfy the Credit Policy then in effect, and 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 ’s reasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Deposit Account Control Agreement relating to the Lockbox Agreement Bank to replace the Custodian or the Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture TrusteeBuyer;
(xii. deliver ) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii. deliver electronically (and partially encrypted) any new in the event that a Defaulted Timeshare Loan is not or amended ACH instructions executed by an Obligor cannot be assigned from the Buyer to the Backup Seller pursuant to Section 6.8 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 (and upon each, a “Foreclosure Property”). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions); andand 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.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer's judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 51% of the sum of the aggregate Cut-Off Aggregate Closing Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateCollateral Balance;
x. (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 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 reasonable 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 ) 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"). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, secure file 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer's access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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, related management contract and master marketing and sale contract (if applicable) for each Resort at all ACH instructionstimes 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. Notwithstanding the foregoing sentence, for so long as Bluegeen or any of its Affiliates controls the Timeshare Association for a Resort, and Bluegeen or an Affiliate thereof is the manager, Bluegreen shall not permit any modification or amendment to the related management contract and master marketing and sale contract, if applicable, to cause the Issuer to fail to be treated as a "qualified special purpose entity" as defined in Statement of Financial Accounting Standards No. 140 (or any successor Statement of Financial Accounting Standards).
(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 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; and(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.
(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 Lien or security interest in and to the Reservation Systex (xxxxxxxxg, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer's judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 51% of the sum of the aggregate Cut-Off Aggregate Closing Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateCollateral Balance;
x. (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 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 reasonable 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 ) 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, forfeiture, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a "Foreclosure Property"). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, secure file 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer's access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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, related management contract and master marketing and sale contract (if applicable) for each Resort at all ACH instructions)times shall be reasonably satisfactory to the Noteholders representing at least
(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 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; and(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.
(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 Lien or security interest in and to the Reservation System (xxxxxxxxx, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. ) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of remarket such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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 effect on the Noteholders, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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, discretion determines that (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 53.00% of the sum 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 36 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 Cut-Off Date Loan Balances Balance of all Force Majeure Loans to exceed 5.00% of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateAggregate Loan Balance;
x. (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 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions)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 Servicer may not sell any of the Foreclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture. 37
(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 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 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 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 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.
(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 gxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all 38
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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 (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 52% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 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.
(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 condition (ordinary wear and tear excepted).
(d) 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 Required Noteholders. For so long as Bluegreen or any of its Affiliates controls the Association for a Resort, and Bluegreen or an unencryptedAffiliate thereof is the manager, secure file (i) if an amendment or modification to the related management contract materially and adversely affects the Noteholders, then it may only be amended or modified with the prior written consent of the Required Noteholders, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract does not materially and adversely affect the Noteholders, Bluegreen shall send a copy of such amendment or modification to the Funding Agents with the quarterly reports required to be delivered pursuant to the Note Funding Agreement 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 Affiliates which materially adversely affects the Issuer’s interest in such Timeshare 28
(f) The Servicer shall: (i) promptly notify the Indenture Trustee and the Funding Agents 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 or the Funding Agents 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 ACH instructions)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, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each Timeshare Loan. The Servicer shall (i) notify the Funding Agents ten days prior to any material amendment or change to the Collection Policy or the Credit Policy and (ii) obtain the Funding Agents’ prior written consent (which consent will not be unreasonably withheld or delayed) to any material amendment or change to the Collection Policy or the Credit Policy that will affect any Timeshare Loan in the Trust Estate; andprovided, that the Servicer may immediately implement any changes (and provide notice to the Funding Agents subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer.
(i) The Servicer shall comply in all material respects with 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 Timeshare Loans owned by it or its Affiliates.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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 (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 52% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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), 27 whereby the Servicer may 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 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.
(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 condition (ordinary wear and tear excepted).
(d) 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 Required Noteholders. For so long as Bluegreen or any of its Affiliates controls the Association for a Resort, and Bluegreen or an unencryptedAffiliate thereof is the manager, secure file (i) if an amendment or modification to the related management contract materially and adversely affects the Noteholders, then it may only be amended or modified with the prior written consent of the Required Noteholders, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract does not materially and adversely affect the Noteholders, Bluegreen shall send a copy of such amendment or modification to the Funding Agents with the quarterly reports required to be delivered pursuant to the Note Funding Agreement 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 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 Indenture Trustee may reasonably require.
(f) The Servicer shall: (i) promptly notify the Indenture Trustee and the Funding Agents 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 or the Funding Agents 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 ACH instructions)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, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each Timeshare Loan. The Servicer shall (i) notify the Funding Agents ten days prior to any material amendment or change to the Collection Policy or the Credit Policy and (ii) obtain the Funding Agents’ prior written consent (which consent will not be unreasonably withheld or delayed) to any material amendment or change to the Collection Policy or the Credit Policy that will affect any Timeshare Loan in the Trust Estate; andprovided, that the Servicer may immediately implement any changes (and provide notice to the Funding Agents subsequent thereto) as may be required under applicable law from time to time upon the reasonable determination of the Servicer.
(i) The Servicer shall comply in all material respects with 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 Timeshare Loans owned by it or its Affiliates.
Appears in 1 contract
Samples: Omnibus Amendment (BBX Capital Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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 (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 52% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 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.
(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 condition (ordinary wear and tear excepted).
(d) 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 Required Noteholders. For so long as Bluegreen or any of its Affiliates controls the Association for a Resort, and Bluegreen or an unencryptedAffiliate thereof is the manager, secure file (i) if an amendment or modification to the related management contract materially and adversely affects the Noteholders, then it may only be amended or modified with the prior written consent 28 of the Required Noteholders, which consent shall not be unreasonably withheld or delayed and (ii) if an amendment or modification to the related management contract does not materially and adversely affect the Noteholders, Bluegreen shall send a copy of such amendment or modification to the Funding Agents with the quarterly reports required to be delivered pursuant to the Note Funding Agreement 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 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 Indenture Trustee may reasonably require.
(f) The Servicer shall: (i) promptly notify the Indenture Trustee and the Funding Agents 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 or the Funding Agents 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 ACH instructions); andrespects, 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 (which shall be consistent with the discretion of the Servicer Servicing Standard) 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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale Agreement;
(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 or 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 51% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 reasonable 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 ) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;; and
(xiii. deliver electronically (and partially encrypted) delivery of any new or amended ACH instructions Forms executed by an Obligor to the Backup Custodian to be held as part of the related Timeshare Loan File.
(b) 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 (and upon each, a "Foreclosure Property"). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver use reasonable efforts to foreclose upon or otherwise comparably convert the Timeshare Property securing such Defaulted Timeshare Loan into inventory that is available for resale. In connection with such foreclosure or other conversion, the Servicer shall follow such practices and procedures as it shall deem necessary (which shall be consistent with the Servicing Standard) so as to dispose of such Timeshare Property as soon as practicable and in a manner that maximizes the Net Liquidation Proceeds, giving effect to, among other things, the gross price obtainable, broker's commissions, foreclosure costs, sales and marketing expenses. The Issuer acknowledges that the Club Originator or the Aruba Originator may be in the best position to remarket the Foreclosure Property in connection with such Originator's overall marketing program for the applicable Timeshare Project. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that one of the Originators or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause such Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in the ordinary course in a manner similar and consistent with (or better than) the manner in which it remarkets or sells other timeshare properties it or its Affiliates owns.
(ii) The Servicer (if Bluegreen Corporation or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Club Trustee. In such event, the Servicer shall direct the Club Trustee, directly or through its agents to exercise the remedies provided for in the Club Trust Agreement, in the Mortgage Note themselves or in the other Club documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the Owner Beneficiary Rights will be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Club Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Trust, the Owner Trustee, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort or the Club.
(iv) The Servicer agrees that it shall require that any Liquidation Proceeds paid to the Issuer be in the form of cash only.
(c) In connection with the Servicer's performance of its duties under Section 5.3(b) hereof, (i) 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 timeshare properties it or its Affiliates owns and (ii) the Servicer may not sell any of the Defaulted Timeshare Loans that are an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(d) For so long as Bluegreen or any of its Affiliates 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).
(e) 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 Noteholders representing at least 66-2/3% of the Outstanding 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 may be amended or modified only with the prior written consent of the Noteholders representing at least 66-2/3% of the Outstanding 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 (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) 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 (ii) 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; and(b) 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 (c) 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.
(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 Lien or security interest in and to the Reservation Systex (xxxxxxxxg, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Outstanding Note Balance of each Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans;; KL2 2868730.8
(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 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. (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 Lockbox Account 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. arrange ) remarketing Timeshare Property;
(viii) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowLoans;
viii. (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 repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 effect 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer KL2 2868730.8 shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. work (xii) working with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxi) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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(xiii) [Reserved];
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under pursuant to Section 5.16 hereof; and
(xv) (A) use commercially reasonable best efforts to cause all the Backup 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 Agreement;
xiii. deliver electronically Standard and (and partially encryptedB) any new or amended ACH instructions executed by an Obligor to the Backup 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.
(and upon b) For so long as an Affiliate of the Backup Servicer's requestServicer 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 KL2 2868730.8 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collections the use of, and access to, the Reservation System.
(g) The Servicer shall notify the Indenture Trustee ten days prior to any material amendment or change to the Collection Policy and shall provide written notice of such amendment to the Rating Agencies. The Servicer shall deliver an unencrypteda 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 the effective date of such amendments or changes.
(h) In connection with the Servicer’s duties under (vii), secure file (viii), (ix) and (xiii) in subsection (a) above, the Servicer will, as soon as practical, undertake such duties in the ordinary course in a manner similar and consistent with all ACH instructions(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), (ix) and (xiii) of subsection (a) above, the Servicer agrees that it shall remarket and sell the Timeshare Property related to Timeshare Loans owned by the Issuer before it remarkets and 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). KL2 2868730.8
(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 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.
(k) The Servicer shall, on behalf of the Issuer, maintain the perfection and priority of the security interest Granted hereunder and, to the extent transfers under the Sale Agreement are characterized as a loan, the security interest Granted therein.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. ) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase and substitution obligations under the Transfer Agreement and the Loan Sale Agreement;
(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 5% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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. ) deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to the Backup Servicer (and upon the Backup Servicer's ’s request, the Servicer shall deliver an unencrypted, secure file with all ACH instructions); and
(A) cause each Resort to be insured in the event of fire, earthquake, or other casualty for the full replacement value thereof and if the Resort is located in a designated flood plain, to maintain flood insurance in an amount not less than the maximum level available under the National Flood Insurance Act of 1968, as amended; (B) in respect of each Resort, maintain general liability insurance in such amounts generally acceptable in the industry; (C) cause each Resort’s insurance policies to remain in full force and effect with a generally acceptable insurance carrier; and (D) monitor the maintenance of the insurance coverage described in (A), (B), and (C) above with respect to each Resort and promptly obtain notice and otherwise acquire Knowledge of any lapse, cessation, decrease or other change in any such insurance coverage.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.6 hereof, the Servicer shall, in accordance with the Servicing Standard, promptly institute collection procedures, which may include, but are 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 promptly attempt to liquidate such foreclosure Property. The Servicer shall select the liquidation option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker’s commissions, foreclosure costs, fees and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2 hereof.
(i) To the extent that the Originator or an Affiliate thereof is selected to remarket a Foreclosure Property, the Servicer shall cause the Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in accordance with the Servicing Standard.
(ii) The Servicer (if Silverleaf or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all necessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Indenture Trustee. In such event, the Servicer shall direct the Indenture Trustee, directly or through its agents to exercise the remedies provided for in the Oak N’ Spruce Trust Agreement, in the Mortgage Note or in the other documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the related Timeshare Property shall be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Oak N’ Spruce Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Issuer, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort.
(iv) The Servicer may elect to liquidate through a public auction any Defaulted Timeshare Loans or related Timeshare Properties foreclosed upon or otherwise reacquired on behalf of the Indenture Trustee from the Obligors of the Defaulted Timeshare Loans. In the event the Servicer elects to so liquidate Defaulted Timeshare Loans or the related Timeshare Properties securing these Defaulted Timeshare Loans, the Originator may bid on such Defaulted Timeshare Loans or related Timeshare Properties and, to the extent it is the highest bidder, may acquire such Defaulted Timeshare Loans or related Timeshare Properties.
(v) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) The Servicer may not sell any of the Defaulted Timeshare Loans that are included in the Collateral except as specifically permitted by this Indenture.
(d) For so long as Silverleaf or any of its Affiliates controls the Resorts, Servicer shall use commercially reasonable efforts to maintain or cause the Resorts to be maintained in good repair, working order and condition (ordinary wear and tear excepted).
(e) For so long as Silverleaf or any of its Affiliates controls the Association for a Resort, and Silverleaf or an Affiliate thereof is the manager, the related management contract may not be amended or modified if such amendment or modification is reasonably likely to have a material adverse affect on the interests of the Noteholder, except with the prior written consent of the Holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes then Outstanding, which consent shall not be unreasonably withheld or delayed, or after obtaining a Rating Agency Confirmation.
(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 Silverleaf or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Silverleaf shall, within the earlier to occur of ten (10) Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Collateral, or any material part thereof, and (ii) 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 Collateral or the Servicer’s ability to service the same; (b) 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, petition or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (c) 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.
(h) Except as contemplated by the Transaction Documents, the Servicer (for so long as Silverleaf or any Affiliate thereof is the Servicer hereunder, otherwise Silverleaf in its individual capacity) shall not, and shall not permit the Managing Entity or the Orlando Breeze Resort Club to, encumber, pledge or otherwise xxxxx x xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Managing Entity and the Orlando Breeze Resort Club, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the members of each Association the use of, and access to, the Reservation System in accordance with the terms of the Management Agreement and the Orlando Breeze Management Agreement, as applicable.
(i) For so long as Silverleaf or any Affiliate thereof is the Servicer, it shall comply in all material respects with the Collection Policy in effect on the Closing Date (or as amended from time to time with the consent of the holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes then Outstanding if such amendment is reasonably likely to have material adverse affect on the interests of the Noteholders or after obtaining a Rating Agency Confirmation) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Silverleaf Resorts Inc)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 (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 2% 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 the 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% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare 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 Servicer may not sell any of the Foreclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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 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 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.
(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 xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of the Rating Agency, the Servicer shall prepare and deliver an unencryptedto the Rating Agency, secure file with all ACH instructions); andupdated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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. ) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of remarket such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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 effect on the Noteholders, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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, discretion determines that (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 53.00% of the sum 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 Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 (ixSection 5.3(a)(ix) abovehereof;
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions)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 Servicer may not sell any of the Foreclosure 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 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 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 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 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.
(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 gxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account 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;; 35
(vii. ) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of remarket such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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 (iA) materially alter the interest rate on or the principal balance of such Timeshare Loan, (iiB) 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 effect on the Noteholders, (iiiC) adversely affect the Timeshare Property underlying such Timeshare Loan or (ivD) 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, discretion determines that (Ax) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future and (By) 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 53.00% of the sum 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 Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 36
(ixxi) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's ’s reasonable 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver an unencrypted, secure file cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with all ACH instructions)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 Servicer may not sell any of the Foreclosure 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 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 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 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 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 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.
(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 xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular.
Appears in 1 contract
Samples: Indenture (BBX Capital Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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. arrange ) in the Servicer’s sole discretion, acquire Nonfinancial Assets on behalf of the Issuer and to be held as part of the Trust Estate 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 Issuer, 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 Defaulted 60-Day Plus Delinquent Loans;
(x) disposing of Timeshare Interests related to the Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowwhether following repossession, foreclosure or otherwise;
viii. (xi) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Depositor under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xii) not modify, waiving waive or amending amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which unless a default on such Timeshare Loan has occurred or is imminent and or unless such modification, amendment or waiver will not 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 interestinterest under, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on the NoteholdersLoan, (iii) adversely affect the Timeshare Property Interest underlying such Timeshare Loan or (iv) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall 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 a single an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (Ai) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (Bii) the value of such Timeshare Loan will be enhanced by such extension; provided, further, provided that the Servicer shall will not be permitted (a) grant more than one extension per calendar year with respect to modifya Timeshare Loan, waive or amend the terms of any (b) grant an extension for more than one calendar month with respect to a Timeshare Loan if in any calendar year or (c) grant an extension that would cause the sum stated maturity of the Cut-Off Date Loan Balance of such a Timeshare Loan and to be later than 24 months prior to the Cut-Off Date Loan Balances of all other Timeshare Loans for which the Servicer has modified, waived or amended the terms thereof exceeds 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Rated Final Maturity Date;
x. (xiii) work with Obligors in connection with any transfer of ownership of a Timeshare Property Interest by an Obligor to another Person (to the extent permitted), whereby and the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)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 (ixxii) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required under the Backup Back-Up Servicing Agreement;; and
xiii. deliver electronically (xv) so long as the Servicer is DFS, on behalf of the Issuer, monitor the Hedge Agreements and partially encryptedto prepare such data and information as may be required by the Issuer, from time to time, to determine whether the Hedge Requirements are being satisfied.
(b) any new or amended ACH instructions executed by an Obligor to For so long as a Diamond Resorts Entity controls the Backup Servicer (and upon the Backup Servicer's requestResorts, 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 S&P and 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 require.
(e) The Servicer shall: (i) promptly notify the Indenture Trustee, the Purchasers, the Administrative Agent and S&P 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) Except as contemplated by the Transaction Documents, 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collection the use of, 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 an unencrypteda copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to the Administrative Agent, secure file each of the Purchasers and the Indenture Trustee with all ACH instructionsthe Monthly Servicer Report to be delivered subsequent to the effective date of such amendments or changes. The Servicer shall provide any such material amendment or change to the Collection Policy to S&P.
(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 Timeshare Interests it or 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) To the extent there is a reduction in the policy limits of property damage insurance coverage for the timeshare fractional interest resorts, or Servicer has determined that such coverage, in accordance with Servicing Standard, if not available on commercially reasonable terms, Servicer shall provide written notice to S&P.
(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 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 proceeds therefrom into the Collection Account within such 30-day time period; andprovided, however, that the foregoing 30-day requirement shall not apply to Right-to-Use Loans that are subject to the (1) the Servicemembers Civil Relief Act of 2003, (2) where the related Obligor is a debtor in a 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).
(l) Notwithstanding any discretion provided in the Collection Policy, the initial Servicer hereby covenants that, with respect to a Timeshare Property underlying a Mortgage Loan that is 181 days past due or 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 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 proceeds therefrom into the Collection Account within such 30-day time period.
(m) The Servicer shall provide written notice to S&P of any material modification, waiver or amendment of the terms of any Timeshare Loan effected pursuant to Section 5.03(a)(xii) hereof.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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 IndentureIndenture and Servicing Agreement;
(vii. arrange ) remarketing Timeshare Properties and Vacation Interests;
(viii) arranging for Liquidations of Timeshare Properties and Vacation Interests related to Defaulted Timeshare Loans and the remarketing Loans;
(ix) disposing of such Timeshare Properties as provided in Section 5.3(b) belowrelated to the Timeshare Loans whether following repossession, foreclosure or otherwise;
viii. (x) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. work (xii) working with Obligors in connection with any transfer of ownership of a Timeshare Property or Vacation Interest by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)or Vacation 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 (ixxi) above;
xi. (xiii) (A) cause all the timeshare or fractional interest resorts operated by MORI (including but not limited to those under the Marriott Vacation Club, Xxxx-Xxxxxxx Club and Grand Residences brands) 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 Custodian Fees policy limits of such coverage or the Lockbox Fees areServicer has determined, in accordance with the Servicer's reasonable business judgmentServicing Standard, no longer commercially reasonable, use that such coverage is not available on commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bankterms, as applicable. Any such successor shall be reasonably acceptable provide written notice to the Indenture TrusteeIssuer within five Business Days of such determination;
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required pursuant to Section 5.19 hereof;
(xv) on behalf of the Issuer, maintain the perfection and priority of the security interest Granted hereunder;
(xvi) observe and perform its obligations under the Backup Servicing Control Account Intercreditor Agreement and the Control Agreement;
xiii. deliver electronically (, monitor the Control Accounts and partially encrypted) any new or amended ACH instructions executed by an Obligor identify and segregate all funds in the Control Accounts and direct the Control Account Bank to remit all collections on the Timeshare Loans to the Backup Collection Account; and
(xvii) on behalf of the Issuer, monitor the Hedge Agreements and to prepare such data and information as may be required by the Issuer, from time to time, to determine whether the Hedge Requirements are being satisfied. In connection with the Servicer’s duties under (vii), (viii) and (ix) above, the Servicer will, as soon as practical, undertake such duties in the ordinary course in a manner similar and consistent with (and upon or better than) the Backup Servicer's requestmanner in which the Servicer sells or markets other timeshare properties or Vacation Interests it or its Affiliates owns. To the extent that any Timeshare Property or Vacation Interest 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.
(b) For so long as MORI or an affiliate of MORI is the on-site manager of the Resorts, the Servicer shall deliver use commercially best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) 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 unencryptedaffiliate of MORI which materially and adversely affects the Issuer’s interest in such Timeshare Loan, secure file the Servicer shall, within the earlier to occur of 10 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 form reasonably acceptable to the Administrative Agent or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably require.
(d) The Servicer shall: (i) promptly notify the Indenture Trustee 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 the Servicer becomes aware after the date hereof pending or threatened against or affecting the 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 ACH instructionsmaterial respects, and shall cause all Affiliates to comply in all material 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.
(e) The Servicer agrees (so long as it is MORI or an Affiliate thereof) that it shall use commercially reasonable efforts to keep the reservation system for the MVC Trust (including, without limitation, all hardware, software and data in respect thereof); and, operational (including by virtue of necessary hardware and software updates and/or upgrades), not to dispose of the same and to allow the MVC Trust the use of, and access to, such reservation system.
(f) The Servicer shall notify the Indenture Trustee and Administrative Agent ten days prior to any material amendment or change to such portion of the Credit and Collection Policy relating to the servicing and collection process of Timeshare Loans that are eligible to be acquired by the Issuer, and shall have received written consent from the Administrative Agent (such consent to not be unreasonably withheld or delayed).
(g) The Servicer agrees (so long as it is MORI or an Affiliate thereof), that it shall, and shall cause its affiliates to perform and observe in all material respects the obligations and duties under the Marriott IP Agreement.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Marriott Vacations Worldwide Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer's judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 51% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 reasonable 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 ) 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"). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare 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 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's access and rights to the Credit Card Account, and shall 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, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the 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 maintain or cause to maintain the Resorts in good repair, working order and 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 Noteholders representing a majority of the 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 Noteholders representing a majority of the Outstanding Note Balance of each Class of Notes, 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, 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 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 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 (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.
(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 grant a Lien or security interest in and to the Reservation Systex (xxxxxxxxg, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each 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 an unencrypteda 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. All notices delivered to the Agent pursuant to this Section 5.3(h) shall also be delivered to the Rating Agency, secure file to the extent that any Class of Notes Outstanding is rated by the Rating Agency.
(i) The Servicer shall comply in all material respects with all ACH instructions); andthe terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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 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. (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 Lockbox Account 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 IndentureIndenture and Servicing Agreement;
(vii. ) remarket Timeshare Properties and Vacation Interests;
(viii) arrange for Liquidations of Timeshare Properties and Vacation Interests related to Defaulted Timeshare Loans and the remarketing Loans;
(ix) dispose of such Timeshare Properties as provided in Section 5.3(b) belowrelated to the Timeshare Loans whether following repossession, foreclosure or otherwise;
viii. (x) to the extent requested by the Indenture Trustee, use reasonable best efforts to enforce the repurchase purchase and substitution obligations obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(xi) not modify, waiving waive or amending amend 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 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 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 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 a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (B) the value of such Timeshare Loan will be enhanced by such extension; provided, further, that the Servicer shall not be permitted (1) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum of the Cut-Off Date Loan Balance of such or (2) grant an extension for more than one calendar month with respect to a 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Dateany calendar year;
x. (xii) work with Obligors in connection with any transfer of ownership of a Timeshare Property or Vacation Interest by an Obligor to another Person (to the extent permitted)Person, whereby the Servicer may consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted)or Vacation 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 (ixxi) above;
xi. (xiii) (A) cause all the timeshare or fractional interest resorts operated by MORI (including but not limited to those under the Marriott Vacation Club, Xxxx-Xxxxxxx Club and Grand Residences brands) 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 Custodian Fees policy limits of such coverage or the Lockbox Fees areServicer has determined, in accordance with the Servicer's reasonable business judgmentServicing Standard, no longer commercially reasonable, use that such coverage is not available on commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bankterms, as applicable. Any such successor shall be reasonably acceptable provide written notice to the Indenture TrusteeIssuer within five Business Days of such determination;
xii. (xiv) deliver such information and data to the Backup Back-Up Servicer as is required pursuant to Section 5.19 hereof;
(xv) on behalf of the Issuer, maintain the perfection and priority of the security interest Granted hereunder;
(xvi) observe and perform its obligations under the Backup Servicing Control Account Intercreditor Agreement and the Control Agreement;
xiii. deliver electronically (, monitor the Control Accounts and partially encrypted) any new or amended ACH instructions executed by an Obligor identify and segregate all funds in the Control Accounts and direct the Control Account Bank to remit all collections on the Timeshare Loans to the Backup Collection Account; and
(xvii) on behalf of the Issuer, monitor the Hedge Agreements and to prepare such data and information as may be required by the Issuer, from time to time, to determine whether the Hedge Requirements are being satisfied. In connection with the Servicer’s duties under (vii), (viii) and (ix) above, the Servicer will, as soon as practical, undertake such duties in the ordinary course in a manner similar and consistent with (and upon or better than) the Backup Servicer's requestmanner in which the Servicer sells or markets other timeshare properties or Vacation Interests it or its Affiliates owns. To the extent that any Timeshare Property or Vacation Interest 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.
(b) For so long as MORI or an affiliate of MORI is the on-site manager of the Resorts, the Servicer shall deliver use commercially best efforts to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted).
(c) 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 unencryptedaffiliate of MORI which materially and adversely affects the Issuer’s interest in such Timeshare Loan, secure file the Servicer shall, within the earlier to occur of 10 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 form reasonably acceptable to the Administrative Agent or (iii) provide the Administrative Agent with such other security as the Administrative Agent may reasonably require.
(d) The Servicer shall: (i) promptly notify the Indenture Trustee 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 the Servicer becomes aware after the date hereof pending or threatened against or affecting the 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 ACH instructionsmaterial respects, and shall cause all Affiliates to comply in all material 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.
(e) The Servicer agrees (so long as it is MORI or an Affiliate thereof) that it shall use commercially reasonable efforts to keep the reservation system for the MVC Trust (including, without limitation, all hardware, software and data in respect thereof); and, operational (including by virtue of necessary hardware and software updates and/or upgrades), not to dispose of the same and to allow the MVC Trust the use of, and access to, such reservation system.
(f) The Servicer shall notify the Indenture Trustee and Administrative Agent ten days prior to any material amendment or change to such portion of the Credit and Collection Policy relating to the servicing and collection process of Timeshare Loans that are eligible to be acquired by the Issuer, and shall have received written consent from the Administrative Agent (such consent to not be unreasonably withheld or delayed).
(g) The Servicer agrees (so long as it is MORI or an Affiliate thereof), that it shall, and shall cause its affiliates to perform and observe in all material respects the obligations and duties under the Marriott License Agreement.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Marriott Vacations Worldwide Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Purchase Agreement and the Loan Depositor under the Sale AgreementAgreement 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 51% of the sum of the aggregate Cut-Off Date Aggregate Initial Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare 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 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’s access and rights to the Credit Card Account, and shall 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, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the 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 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 Noteholders representing a majority of the 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 Noteholders representing a majority of the Outstanding Note Balance of each Class of Notes, 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, 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 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 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 (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.
(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, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(h) The Servicer shall comply in all material respects with the Collection Policy and the Credit Policy attached hereto as Exhibit J and Exhibit K, respectively, in regard to each 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 an unencrypted, secure file 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.
(i) The Servicer shall comply in all ACH instructions); andmaterial respects with the terms of the Timeshare Loans.
Appears in 1 contract
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 51% of the sum of the aggregate Cut-Off Aggregate Closing Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateCollateral Balance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, secure file 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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, related management contract and master marketing and sale contract (if applicable) for each Resort at all ACH instructionstimes 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. Notwithstanding the foregoing sentence, 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, Bluegreen shall not permit any modification or amendment to the related management contract and master marketing and sale contract, if applicable, to cause the Issuer to fail to be treated as a “qualified special purpose entity” as defined in Statement of Financial Accounting Standards No. 140 (or any successor Statement of Financial Accounting Standards).
(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 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; and(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.
(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 xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. LOAN SALE & SERVICING AGREEMENT
(i) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (A) perform standard accounting services and general record keeping recordkeeping services with respect to the Timeshare Loans;
ii. (B) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans;
iii. (C) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans;
iv. (D) contact Obligors to effect collections 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;
v. (E) report tax information to Obligors and taxing authorities to the extent required by law;
vi. (F) 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 Buyer for deposit into the Collection Account all payments received by the Servicer or remitted to any of the Lockbox Account 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 IndentureAgreement;
vii. arrange (G) arranging for Liquidations of Timeshare Properties Points related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) belowPoints;
viii. (H) except for Timeshare Loans assigned by the Buyer to the Seller, dispose of Points related to the Defaulted Timeshare Loans;
(I) to the extent requested by the Buyer, use reasonable best efforts to enforce the repurchase and substitution obligations purchase obligation of the Seller under the Transfer Agreement and the Loan Sale Agreement;
ix. refrain from modifying(J) not modify, waiving waive or amending amend the terms of any Timeshare Loan; provided, however, the Servicer may modify, waive or amend a Timeshare Loan for which unless a default on such Timeshare Loan has occurred or is imminent and or unless such modification, amendment or waiver will not not: (i1) materially alter the interest rate on or the principal balance of such Timeshare Loan, (ii2) shorten the final maturity of, lengthen the timing of payments of either principal or interestinterest LOAN SALE & SERVICING AGREEMENT under, or any other terms of, such Timeshare Loan in any manner which would have a material adverse affect on the NoteholdersLoan, (iii3) adversely affect the Timeshare Property Points underlying such Timeshare Loan or (iv4) reduce materially the likelihood that payments of interest and principal on such Timeshare Loan shall 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 a single an extension of the final maturity of a Timeshare Loan if the Servicer, in its reasonable discretion, determines that (Ai) such Timeshare Loan is in default or a default on such Timeshare Loan is likely to occur in the foreseeable future future, and (Bii) the value of such Timeshare Loan will be enhanced by such extension; provided, further, provided that the Servicer shall will not be permitted (x) grant more than one extension per calendar year with respect to modify, waive or amend the terms of any a Timeshare Loan if the sum or (y) grant an extension for more than one calendar month with respect to a Timeshare Loan in any calendar year;
(K) not impose an interest rate on any Defaulted Timeshare Loan in excess of the Cut-Off Date Loan Balance maximum prescribed by the National Credit Union Association, which is eighteen percent (18%) per annum simple interest at the date 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 5% of the sum of the aggregate Cut-Off Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Datethis Agreement but may be modified from time to time;
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 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 (ixL) above;
xi. to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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 Back-Up Servicer as is required under this Agreement; and
(M) at the Backup Servicing Agreement;
xiii. deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor reasonable request of the Buyer, furnish to the Backup Servicer 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.
(and upon ii) For so long as a Diamond Resorts Party controls the Backup Servicer's requestResorts, 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 amended or modified with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed and (B) if an amendment or modification to the related management contract and master marketing and sale contract does not materially and adversely LOAN SALE & SERVICING AGREEMENT affect the Buyer the Servicer shall send a copy of such amendment or modification to the Buyer with the Monthly Report to be delivered subsequent to the effective date of such amendment or modification.
(iv) 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 has a Materially Adverse Effect on the Buyer'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 (A) cause such Lien to be released of record, (B) provide the Buyer with a bond in accordance with applicable law, issued by a corporate surety acceptable to the Buyer, in an amount and in form reasonably acceptable to the Buyer or (C) provide the Buyer with such other security as the Buyer may reasonably require.
(v) The Servicer shall: (A) promptly notify the Buyer of (1) receiving notice of any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Conveyed Timeshare Property, or any material part thereof, and (2) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting the Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Conveyed Timeshare Property or the Servicer's ability to service the same; (B) at the request of Buyer 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 (C) 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 Conveyed Timeshare Property or the Servicer's ability to service the same.
(vi) Except for any security interest granted prior to the date of this Agreement, 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, all hardware, software and data in respect thereof) and furthermore agrees, and shall use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Collection the use of, and access to, the Reservation System.
(vii) The Servicer shall (A) notify the Buyer ten days prior to any material amendment or change to the Collection Policy or the Underwriting Guidelines and (B) obtain the Buyer's prior written consent (which consent will not be unreasonably withheld or delayed) for any material amendment or change; provided, that the LOAN SALE & SERVICING AGREEMENT Servicer may immediately implement any changes (and provide notice to the Buyer 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 an unencrypteda copy of any non-material amendments or changes to the Collection Policy or the Underwriting Guidelines to the Buyer with the Monthly Servicer Report to be delivered subsequent to the effective date of such amendments or changes.
(viii) In connection with the Servicer’s duties under Sections 10(c)(i)(G), secure 10(c)(i)(H), and 10(c)(i)(I) 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 Points it or its Affiliates owns. In addition, in connection with the Servicer’s duties under Sections 10(c)(i)(G), 10(c)(i)(H) and 10(c)(i)(I) above, the Servicer agrees that the Buyer shall be entitled to proceeds from the sale of Points before the Servicer or any of the Servicer’s Affiliates (other than Affiliates engaged primarily in receivables securitizations and other forms of conduit financings).
(ix) Except for any Timeshare Loan assigned by the Buyer to the Seller, if any Points related to a Defaulted Timeshare 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.
(x) The Servicer agrees that, with respect to Timeshare Loan Files related to Eligible In-Transit Loans, it shall (A) maintain and hold such Timeshare Loan Files for the exclusive benefit of the Buyer on behalf of the Buyer and (B) shall deliver such Timeshare Loan Files to the Custodian as soon as practicable. Except as approved by the Buyer, the Servicer shall not deliver possession of such Timeshare Loan Files to any Person other than the Custodian.
(xi) Not later than three months after the Closing Date, the Servicer shall provide the Buyer with its written oversight policy for its cash and borrowing base management procedures, collateral identification, management and loan file custody systems and methodology, financial and contractual covenant compliance, loan servicing and reporting procedures and communication system with all ACH instructions); andthe Buyer and the Custodian in a form satisfactory to the Buyer.
Appears in 1 contract
Samples: Loan Sale and Servicing Agreement (Diamond Resorts Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 Servicer’s judgment (which shall be consistent with the Servicer Servicing Standard) 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 the Lockbox Account or the Credit Card Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b5.3(a)(xiii) belowhereof;
(viii. ) use reasonable best efforts to enforce the repurchase purchase 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 Loan Sale AgreementTimeshare 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, 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 (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 2% 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 the approval of the Rating Agency, 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% of the sum of the aggregate Cut-Off Date Aggregate Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing DateBalance;
x. (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 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 ’s reasonable 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 ) 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”). deliver electronically (and partially encrypted) any new or amended ACH instructions executed by an Obligor to Upon the Backup Servicer (and upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver 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 Servicer may not sell any of the Foreclosure Property that is an unencryptedasset of the Trust Estate except for or as specifically permitted by this Indenture.
(c) The Servicer shall, secure file 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. With the written consent of 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Indenture Trustee shall cause the Lockbox Bank to restrict the Servicer’s access and rights to the Credit Card Account, and shall 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 Noteholders, the Servicer shall not provide any contrary instruction to the Lockbox Bank with respect to the Credit Card Account.
(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 ACH instructions)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 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; and(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.
(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 xxxxx x Xxxx or security interest in and to the Reservation System (including, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in 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 Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
Duties and Responsibilities of the Servicer. a. (a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard:
i. (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. (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 the Lockbox Account 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. arrange ) arranging for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and the remarketing of such Timeshare Properties as provided in Section 5.3(b) below;
(viii. ) use reasonable best efforts to enforce the repurchase purchase and substitution obligations of the Club Originator under the Transfer Agreement and Agreements or the Loan Sale Purchase Agreement;
(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 or 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 51% of the sum of the aggregate Cut-Off Aggregate Closing Date Loan Balances of the Initial Timeshare Loans and the amounts on deposit in the Prefunding Account on the Closing Date;Collateral Balance.
x. (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 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;; and
(xi. ) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer's reasonable 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 ) delivery of such information and data to the Backup Servicer as is required under the Backup Servicing Agreement;
(xiii. deliver electronically (and partially encrypted) delivery of any new or amended ACH instructions Forms executed by an Obligor to the Backup Custodian to be held as part of the related Timeshare Loan File.
(b) In the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.5 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 (and upon each, a "FORECLOSURE PROPERTY"). Upon the Backup Servicer's requestTimeshare Property becoming a Foreclosure Property, the Servicer shall deliver promptly attempt to remarket such Foreclosure Property. The Issuer acknowledges that the Club Originator or the Aruba Originator may be in the best position to remarket the Foreclosure Property in connection with such Originator's overall marketing program for the applicable Timeshare Project. The Servicer shall select the remarketing option reasonably anticipated to produce the highest Net Liquidation Proceeds, giving effect to the gross price obtainable, broker's commissions, foreclosure costs, sales and marketing expenses and other factors. The Servicer shall be entitled to reimbursement of Liquidation Expenses out of Liquidation Proceeds. Any Liquidation Expenses later recovered by the Servicer shall be deposited by the Servicer in the Collection Account in accordance with Section 5.2(c) and (d) hereof.
(i) To the extent that one of the Originators or an unencryptedAffiliate thereof is selected to remarket a Foreclosure Property, secure file the Servicer shall cause such Originator or Affiliate thereof to agree that it will remarket such Foreclosure Property in the ordinary course in a manner similar and consistent with (or better than) the manner in which it remarkets or sells other timeshare properties it or its Affiliates owns.
(ii) The Servicer (if Bluegreen Corporation or its Affiliate is acting as Servicer) on behalf of the Issuer and the Indenture Trustee shall take all ACH instructionsnecessary steps to have the record title of the applicable Timeshare Properties subject to such Defaulted Timeshare Loans continue to be held by the Club Trustee. In such event, the Servicer shall direct the Club Trustee, directly or through its agents to exercise the remedies provided for in the Club Trust Agreement, in the Mortgage Note themselves or in the other Club documents with respect to such Defaulted Timeshare Loans and the Obligors thereunder, and the Owner Beneficiary Rights will be remarketed with the purpose of obtaining the maximum Net Liquidation Proceeds in respect of such Defaulted Timeshare Loans.
(iii) The Servicer shall reserve its rights under the Club Trust Agreement and/or the applicable Mortgages to obtain, at any time, record title and all beneficial interests in respect of the Timeshare Properties related to Defaulted Timeshare Loans. All actions taken by the Servicer in respect of any Defaulted Timeshare Loans shall, at all times, be carried out in a manner such that none of the Trust, the Owner Trustee, the Indenture Trustee or the Noteholders shall, under applicable law, be deemed to be the developer or declarant of any Resort or the Club.
(iv) The Servicer agrees that it shall require that any Liquidation Proceeds be in the form of cash only.
(c) In connection with the Servicer's performance of its duties under Section 5.3(b), (i) 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 timeshare properties it or its Affiliates owns and (ii) the Servicer may not sell any of the Defaulted Timeshare Loans that are an asset of the Trust Estate except for or as specifically permitted by this Indenture.
(d) For so long as Bluegreen or any of its Affiliates 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).
(e) 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 Holders 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 may be amended or modified only with the prior written consent of the Holders 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 (10) Business Days after such attachment or the respective lienholders' action to foreclose on such lien, either (a) cause such Lien to be released of record, (b) 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 (c) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require.
(g) The Servicer shall: (a) promptly notify the Indenture Trustee of (i) 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 (ii) 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; and(b) 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 (c) 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.
(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 Lien or security interest in and to the Reservation System (xxxxxxxxx, without limitation, all hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the 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.
(i) The Servicer shall comply in all material respects with the Collection Policy in effect on the Closing Date (or, as amended from time to time with the consent of the Holders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes) and with the terms of the Timeshare Loans.
Appears in 1 contract
Samples: Indenture (Bluegreen Corp)
