Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2011-4), Servicing Agreement (Ally Auto Receivables Trust 2011-4)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2014-3 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-3), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2011-2), Servicing Agreement (Ally Auto Receivables Trust 2011-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested first in ICT Treasury Portfolio Institutional Shares for so long as ICT Treasury Portfolio Institutional Shares is an Eligible Investment. If ICT Treasury Portfolio Institutional Shares ceases to be an Eligible Investment, the ~~Servicer~~funds deposited in each of the Designated Accounts shall second be held in Cash Reserve Fund Institutional Shares—Prime Series for so long as Cash Reserve Fund Institutional Shares—Prime Series is an Eligible Investment. If Cash Reserve Fund Institutional Shares—Prime Series ceases to be an Eligible Investment, ~~upon thirty (30) days’~~ the funds deposited in each of the Designated Accounts shall third be held in GS FSQ Treasury Investments Fund for so long as GS FSQ Treasury Investments Fund is an Eligible Investment. If GS FSQ Treasury Investments Fund ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall be invested at the written direction of the Servicer in a money market mutual fund that is an Eligible Investment and has a principal investment strategy and an investment objective that are each substantially identical to ICT Treasury Portfolio Institutional Shares. Such investments shall mature prior to the next Distribution Date; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the preceding four sentences with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in this Section 5.01(b)(i). The Servicer ~~in such notice. No Designated Account~~ shall ~~be maintained with an Account Holder~~ have no power or right to change or alter any of the foregoing initial specifications; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the ~~Servicer that any such investment is authorized by~~ provisions of the second through fifth sentences of this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies5.01(b)(i). Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2012-3), Servicing Agreement (Ally Auto Receivables Trust 2012-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty~~ in each case, mature or be liquidated (30A) ~~days’~~ on the next Distribution Date or (B) prior to the next Distribution Date if the Deposit Condition is satisfied; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2014-2), Servicing Agreement (Ally Auto Receivables Trust 2014-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2016-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2016-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty (30) days’~~ in each case, mature or, if such Eligible Investment does not mature, be liquidated as set forth in the definition of “Eligible Investments”; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ this Section 5.01(b)(i) the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2016-1), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2016-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature or, if such Eligible Investment does not mature, be liquidated (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2015-2), Servicing Agreement (Ally Auto Receivables Trust 2015-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing~~ Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, in each case, mature or, if such Eligible Investment does not mature, be liquidated on the next Distribution Date, ; provided that neither the ~~Servicer, upon thirty (30) days’~~ Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2016-2), Servicing Agreement (Ally Auto Receivables Trust 2016-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2013-2 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables LLC), Trust Sale and Servicing Agreement (Capital Auto Receivables LLC)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2015-3 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account~~ Designated Accounts shall be invested in Eligible Investments which must mature or if such Eligible Investment does not mature, be liquidated (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-3), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2014-1 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-1), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 5 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 5 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested first in ICT Treasury Portfolio Institutional Shares for so long as ICT Treasury Portfolio Institutional Shares is an Eligible Investment. If ICT Treasury Portfolio Institutional Shares ceases to be an Eligible Investment, the ~~Servicer~~funds deposited in each of the Designated Accounts shall second be held in Cash Reserve Fund Institutional Shares—Prime Series for so long as Cash Reserve Fund Institutional Shares—Prime Series is an Eligible Investment. If Cash Reserve Fund Institutional Shares—Prime Series ceases to be an Eligible Investment, ~~upon thirty (30) days’~~ the funds deposited in each of the Designated Accounts shall third be held in GS FSQ Treasury Investments Fund for so long as GS FSQ Treasury Investments Fund is an Eligible Investment. If GS FSQ Treasury Investments Fund ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall be invested at the written direction of the Servicer in a money market mutual fund that is an Eligible Investment and has a principal investment strategy and an investment objective that are each substantially identical to ICT Treasury Portfolio Institutional Shares. Such investments shall mature prior to the next Distribution Date; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the preceding four sentences with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in this Section 5.01(b)(i). The Servicer ~~in such notice. No Designated Account~~ shall ~~be maintained with an Account Holder~~ have no power or right to change or alter any of the foregoing initial specifications; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the ~~Servicer that any such investment is authorized by~~ provisions of the second through fifth sentences of this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies5.01(b)(i). Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2012-5), Servicing Agreement (Ally Auto Receivables Trust 2012-5)

Establishment of Accounts. ~~(i) The Servicer, for~~ Lender has established the ~~benefit of~~ Escrow Accounts and the ~~Financial Parties, shall establish and maintain~~ Central Account in the name of Lender and the ~~Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4~~ Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the joint name of ~~the Indenture Trustee an Eligible Deposit Account known~~ Borrower and Lender, as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated secured party. The Escrow Accounts ~~shall be initially established with the Indenture Trustee. At any time after the Closing Date~~, the ~~Servicer, upon thirty (30) days’ written notice to~~ Collection Account and the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Central Account shall be ~~maintained with an Account Holder if~~ under the ~~short-term debt obligations~~ sole dominion and control of ~~such Account Holder cease~~ Lender and funds held therein shall not constitute trust funds. Borrower hereby irrevocably directs and authorizes Lender to ~~have~~ withdraw funds from the ~~Required Deposit Rating (except that any Designated~~ Collection Account, ~~may be maintained with an~~ and to deposit into and withdraw funds from the Central Account ~~Holder even if~~ and the ~~short-term debt obligations of such Account Holder do not have the Required Deposit Rating~~Escrow Accounts, ~~if such Account Holder maintains such Designated Account~~ all in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), accordance with the ~~Indenture Trustee’s assistance~~ terms and conditions of this Security Instrument. Borrower shall have no right of withdrawal in respect of the Collection Account, the Central Account or the Escrow Accounts except as ~~necessary, cause each affected Designated Account (A)~~ specifically provided herein. Each transfer of funds to be ~~moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to~~ made hereunder shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, made only to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes funds are ~~sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount~~ on deposit in the ~~Reserve~~ Collection Account, the Central Account ~~would be less than~~ or the ~~Specified Reserve~~ affected Sub-Account ~~Balance. Investment Earnings on~~ or Escrow Account, and Lender shall have no responsibility to make additional funds ~~deposited~~ available in the ~~Designated Accounts~~ event that funds on deposit are insufficient. The Central Account shall ~~be payable to~~ contain the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture TrusteeBasic Carrying Costs Sub-Account, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account PropertyDebt Service Payment Sub-Account, the ~~Account Holder agrees~~Recurring Replacement Reserve Sub-Account, ~~by its acceptance hereof~~the Operation and Maintenance Expense Sub-Account, ~~that: (A) Any Designated Account Property that is held in deposit~~ the Mez Payment Sub-Acount and the Curtailment Reserve Sub-Account, each of which accounts shall be ~~held solely in~~ Eligible ~~Deposit~~ Accounts or book-entry sub-accounts of an Eligible Account (each a “Sub-Account” and collectively, the “Sub-Accounts~~. The Designated Accounts are accounts~~ ”) to which ~~Financial Assets will~~ certain funds shall be ~~credited. (B) All securities or other property underlying any Financial Assets credited~~ allocated and from which disbursements shall be made pursuant to the ~~Designated Accounts shall be registered~~ terms of this Security Instrument. Sums held in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Escrow Accounts may be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blankcommingled with other monies held by Lender. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality Trust Inc), Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality Trust Inc)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2013-3 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-3), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature or, if such Eligible Investment does not mature, be liquidated (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2016-1), Servicing Agreement (Ally Auto Receivables Trust 2016-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2013-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2013-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested first in ICT Treasury Portfolio Institutional Shares for so long as ICT Treasury Portfolio Institutional Shares is an Eligible Investment. If ICT Treasury Portfolio Institutional Shares ceases to be an Eligible Investment, the ~~Servicer~~funds deposited in each of the Designated Accounts shall second be held in Cash Reserve Fund Institutional Shares—Prime Series for so long as Cash Reserve Fund Institutional Shares—Prime Series is an Eligible Investment. If Cash Reserve Fund Institutional Shares—Prime Series ceases to be an Eligible Investment, ~~upon thirty (30) days’~~ the funds deposited in each of the Designated Accounts shall third be held in GS FSQ Treasury Investments Fund for so long as GS FSQ Treasury Investments Fund is an Eligible Investment. If GS FSQ Treasury Investments Fund ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall be invested at the written direction of the Servicer in a money market mutual fund that is an Eligible Investment and has a principal investment strategy and an investment objective that are each substantially identical to ICT Treasury Portfolio Institutional Shares. Such investments shall mature prior to the next Distribution Date; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the preceding four sentences with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in this Section 5.01(b)(i). The Servicer ~~in such notice. No Designated Account~~ shall ~~be maintained with an Account Holder~~ have no power or right to change or alter any of the foregoing initial specifications; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the ~~Servicer that any such investment is authorized by~~ provisions of the second through fifth sentences of this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies5.01(b)(i). Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2013-1), Servicing Agreement (Ally Auto Receivables Trust 2013-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2015-4 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account~~ Designated Accounts shall be invested in Eligible Investments which must mature or if such Eligible Investment does not mature, be liquidated (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-4), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-4)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing~~ Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested first in ICT Treasury Portfolio Institutional Shares for so long as ICT Treasury Portfolio Institutional Shares is an Eligible Investment. If ICT Treasury Portfolio Institutional Shares ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall second be held in Cash Reserve Fund Institutional Shares—Prime Series for so long as Cash Reserve Fund Institutional Shares—Prime Series is an Eligible Investment. If Cash Reserve Fund Institutional Shares—Prime Series ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall third be held in GS FSQ Treasury Investments Fund for so long as GS FSQ Treasury Investments Fund is an Eligible Investment. If GS FSQ Treasury Investments Fund ceases to be an Eligible Investment, the funds deposited in each of the Designated Accounts shall be invested at the written direction of the Servicer in a money market mutual fund that is an Eligible Investment and has a principal investment strategy and an investment objective that are each substantially identical to ICT Treasury Portfolio Institutional Shares. Such investments shall mature prior to the next Distribution Date or the Additional Class A-1 Distribution Date, as applicable; provided that neither the ~~Servicer, upon thirty (30) days’~~ Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the preceding four sentences with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in this Section 5.01(b)(i). The Servicer ~~in such notice. No Designated Account~~ shall ~~be maintained with an Account Holder~~ have no power or right to change or alter any of the foregoing initial specifications; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the ~~Servicer that any such investment is authorized by~~ provisions of the second through fifth sentences of this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies5.01(b)(i). Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2012-4), Servicing Agreement (Ally Auto Receivables Trust 2012-4)

Establishment of Accounts. ~~(i) The Servicer~~Borrower hereby confirms that, simultaneously with the execution of this Agreement, pursuant to the Account Agreement, Operating Lessee has established with Cash Management Bank, in the name of Borrower for the benefit of ~~the Financial Parties~~Lender, ~~shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known~~ as ~~the Ally Auto Receivables Trust 2011-4 Collection Account~~ secured party, a collection amount (the “Collection Account”), which has been established as an interest-bearing ~~an additional designation clearly indicating that~~ deposit account, and a holding account (the “Holding Account”), which has been established as a securities account. Both the Collection and the Holding Account and each sub-account of either such account and the funds deposited therein ~~are held~~ and the securities and other assets credited thereto shall serve as additional security for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture TrusteeLoan. ~~At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice~~ Pursuant to the ~~Indenture Trustee or other~~ Account ~~Holder~~Agreement, Borrower shall ~~have the right~~ irrevocably instruct and authorize Cash Management Bank to ~~instruct an Account Holder to transfer~~ disregard any or and all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to orders for withdrawal from the Collection Account ~~pursuant to Section 5.02) shall~~or the Holding Account made by, ~~to the extent permitted by applicable laws, rules and regulations, be invested,~~ or at the ~~written~~ direction ~~of the Servicer~~of, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior Borrower or Operating Lessee other than to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount transfer all amounts on deposit in the ~~Reserve~~ Collection Account ~~would~~ on a daily basis to the Holding Account. Borrower agrees that, prior to the payment in full of the Indebtedness, the terms and conditions of the Account Agreement shall not be ~~less than~~ amended or modified without the ~~Specified Reserve Account Balance~~prior written consent of Lender (which consent Lender may grant or withhold in its sole discretion), and if a Securitization has occurred, the delivery by Borrower of a Rating Agency Confirmation. ~~Investment Earnings on~~ In recognition of Lender’s security interest in the funds deposited in into the ~~Designated Accounts~~ Collection Account and the Holding Account, Borrower shall identify both the Collection Account and the Holding Account with the name of Lender, as secured party. The Collection Account shall be ~~payable~~ named as follows: “Fairmont Scottsdale Princess f/b/o Citigroup Global Markets Realty Corp., as secured party Collection Account,” account number 724042.1. The Holding Account shall be named as follows: “Fairmont Scottsdale Princess f/b/o Citigroup Global Markets Realty Corp., as secured party Holding Account,” account number 724047. 1. Borrower confirms that it has established with Cash Management Bank the following sub-accounts of the Holding Account (each, a “Sub-Account” and, collectively, the “Sub-Accounts” and together with the Holding Account and the Collection Account, the “Collateral Accounts”), which (i) may be ledger or book entry sub-accounts and need not be actual sub-accounts, (ii) shall each be linked to the ~~Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i)~~Holding Account, (iii) shall each be a “Securities ~~Intermediary.~~Account” ~~If a Securities Intermediary~~ pursuant to Article 8 of the UCC and (iv) shall each be an Eligible Account to which certain funds shall be ~~a Person other than the Indenture Trustee, the Servicer~~ allocated and from which disbursements shall ~~obtain the express agreement of such Person~~ be made pursuant to the ~~obligations~~ terms of ~~the Securities Intermediary set forth in~~ this ~~Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that~~Agreement: (Aa) ~~Any Designated~~ a sub-account for the retention of Account Collateral in respect of Impositions and Other Charges for the Property ~~that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited.~~with the account number 724042.1 (the “Tax Reserve Account”); (Bb) ~~All securities or other property underlying any Financial Assets credited to~~ a sub-account for the ~~Designated Accounts shall be registered~~ retention of Account Collateral in respect of insurance premiums for the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement Property with the ~~Issuing Entity,~~ account number 724042.1 (the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings“Insurance Reserve Account”). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect.; (c) ~~[Reserved].~~a sub-account for the retention of Account Collateral in respect of FF&E with the account number 724042.1 (the “FF&E Reserve Account”); and (d) ~~The Indenture Trustee,~~ a sub-account for the ~~Owner Trustee,~~ retention of Account Collateral in respect of current Debt Service on the ~~Securities Intermediary,~~ Loan with the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitledaccount number 724042.1 (the “Current Debt Service Reserve Account”).

Appears in 2 contracts

Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)

Establishment of Accounts. ~~(i) The Servicer, for~~ Lender has established the ~~benefit of~~ Escrow Accounts and the ~~Financial Parties, shall establish and maintain~~ Central Account in the name of Lender as secured party and Mortgagor has established the ~~Indenture Trustee an Eligible Deposit~~ Central Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the ~~name~~ joint names of ~~the Indenture Trustee an Eligible Deposit Account known~~ Lender, as ~~the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution~~ secured party, and Mortgagor. The Central Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the ~~Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other~~ Rent Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Escrow Accounts shall be under the ~~exclusive~~ sole dominion and control of Lender and funds held therein shall not constitute trust funds. Mortgagor hereby irrevocably directs and authorizes Lender to withdraw funds from the ~~Indenture Trustee for~~ Central Account, the ~~benefit~~ Rent Account and the Escrow Accounts, all in accordance with the terms and conditions of this Security Instrument. Mortgagor shall have no right of withdrawal in respect of the ~~Securityholders~~ Central Account, the Rent Account or the Escrow Accounts. Each transfer of funds to be made hereunder shall be made only to the extent that funds are on deposit in the Central Account, the Rent Account or the affected Sub-Account or Escrow Account, and Lender shall have no responsibility to make additional funds available in the event that funds on deposit are insufficient. The Central Account shall contain the Basic Carrying Costs Sub-Account, the Debt Service Payment Sub-Account, the Recurring Replacement Reserve Sub-Account, the Reletting Reserve Sub-Account, the Operation and Maintenance Expense Sub-Account and the ~~Indenture Trustee~~ Curtailment Reserve Sub-Account, each of which accounts shall ~~have sole signature power~~ be Eligible Accounts or book entry sub-accounts of an Eligible Account (each a “Sub-Account” and ~~authority~~ collectively, the “Sub-Accounts”) to which certain funds shall be allocated and from which disbursements shall be made pursuant to the terms of this Security Instrument. In addition, on the date hereof, the Central Account shall also contain (x) a Sub-Account entitled the “Engineering Escrow Sub Account”, which shall be funded by Mortgagor at Closing with ~~respect thereto.~~ the Initial Engineering Deposit set forth on Exhibit B attached hereto (~~v) The Servicer~~ representing the sum applicable to the Required Engineering Work described in Section 5.12 below and on Exhibit D attached hereto. Disbursements from the Engineering Sub-Account shall ~~not direct the Account Holder to make any investment of any funds or to sell any investment~~ be made in accordance with Section 5.12 hereof. Sums held in ~~any of~~ the ~~Designated~~ Escrow Accounts ~~unless the security interest granted and perfected in such account shall continue to~~ may be ~~perfected in such investment or the proceeds of such sale, in either case without any further action~~ commingled with other monies held by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectLender. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Mortgage and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Mortgage and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2016-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty (30) days’~~ in each case, mature or, if such Eligible Investment does not mature, be liquidated as set forth in the definition of “Eligible Investments”; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2016-3), Servicing Agreement (Ally Auto Receivables Trust 2016-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-8- 102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2012-2), Servicing Agreement (Ally Auto Receivables Trust 2012-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing~~ Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, in each case, mature or, if such Eligible Investment does not mature, be liquidated on the next Distribution Date, ; provided that neither the ~~Servicer, upon thirty (30) days’~~ Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2015-1), Servicing Agreement (Ally Auto Receivables Trust 2015-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2015-2 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account~~ Designated Accounts shall be invested in Eligible Investments which must mature or if such Eligible Investment does not mature, be liquidated (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-2), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2011-3), Servicing Agreement (Ally Auto Receivables Trust 2011-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2011-1), Servicing Agreement (Ally Auto Receivables Trust 2011-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing~~ Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, in each case, mature prior to the next Distribution Date, ; provided that neither the ~~Servicer, upon thirty (30) days’~~ Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as an investment trust described in Treasury Regulations Section 1.301-7701-4(c) that is a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2014-1), Servicing Agreement (Ally Auto Receivables Trust 2014-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2012-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2012-1), Servicing Agreement (Ally Auto Receivables Trust 2012-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing~~ Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, in each case, mature or be liquidated on the next Distribution Date, ; provided that neither the ~~Servicer, upon thirty (30) days’~~ Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Assets LLC), Servicing Agreement (Ally Auto Receivables Trust 2014-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2015-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2015-1 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account~~ Designated Accounts shall be invested in Eligible Investments which must mature or be liquidated (i) on the next Distribution Date, (ii) prior to the next Distribution Date if the Deposit Condition is satisfied or (iiiii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-1), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2015-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2013-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2013-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved.]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Assets LLC), Servicing Agreement (Ally Auto Receivables Trust 2013-2)

Establishment of Accounts. (i) The ~~Servicer~~Trust Administrator, for the benefit of the Financial Parties, shall establish and maintain in the name of the CARAT Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011-4~~ 20__-SN_ Collection Account (the “CARAT Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Financial Parties. (ii) The ~~Servicer~~Trust Administrator, for the benefit of the CARAT 20__-SN_ Noteholders, shall establish and maintain in the name of the CARAT Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011-4~~ 20__-SN_ Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the CARAT 20__-SN_ Noteholders. (i) Each of the Designated Accounts shall be initially established with the CARAT Indenture Trustee, who shall be the initial Account Holder. At any time after the Series 20__-SN_ Closing Date, the ~~Servicer~~Trust Administrator, upon ~~thirty (30) days’~~ 30 days prior written notice to the ~~Indenture Trustee or other~~ Account Holder, shall have the right to, and if any Account Holder ceases to be an Eligible Institution the Trust Administrator shall, instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the ~~Servicer~~ Trust Administrator in such notice. No Designated Account shall be maintained with an Account Holder if the short-term unsecured debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term unsecured debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account as a segregated account in its corporate trust department). Should ~~the short-term unsecured debt obligations of~~ an Account Holder no longer ~~have~~ satisfy the ~~Required Deposit Rating~~requirements in the preceding sentence with respect to any Designated Account, then the ~~Servicer~~ Trust Administrator shall, within ~~ten (10)~~ 10 Business Days (or such longer period, not to exceed ~~thirty (30)~~ 30 calendar days, selected by the Trust Administrator, as to which each Rating Agency shall ~~consent~~consent (which consent shall not be required if the Rated Notes are not outstanding)), with the ~~Indenture Trustee~~Account Holder’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution with the Required Deposit Rating or (B) ~~with respect to the Designated Accounts only,~~ to be moved to a segregated account in the corporate trust department of the Account Holder. All amounts held in ~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ such accounts shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the ~~Servicer~~Trust Administrator, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the ~~Servicer~~ Trust Administrator that any such investment is authorized by this Section 5.01. ~~Funds deposited~~ In the absence of such prior written instruction from the Trust Administrator to such Account Holder, the Account Holder shall invest any uninvested funds in ~~the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies.~~ [Xxxxxxx Xxxxx Prime Obligations Fund, Institutional Class #462].” Investments in Eligible Investments shall be made in the name of the CARAT Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer~~Trust Administrator. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the CARAT Indenture Trustee, the ~~Servicer~~ Trust Administrator shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the ~~Servicer~~ Trust Administrator or the Depositor, payable to the order of the Issuing Entity, the ~~Servicer~~ Trust Administrator or the Depositor or specially indorsed to the Issuing Entity, the ~~Servicer~~ Trust Administrator or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the CARAT Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the ~~Issuing Entity~~Trust, the ~~Servicer~~Trust Administrator, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the ~~Servicer~~Trust Administrator, the Account Holder or the CARAT Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the CARAT Indenture Trustee in the Designated Accounts, the Securities Intermediary has no ~~actual~~ knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, ~~encumbrance or adverse claim~~ (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the CARAT Indenture Trustee, the ~~Servicer~~ Trust Administrator and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the ~~Servicer~~ Trust Administrator and the CARAT Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The ~~Servicer~~ Trust Administrator shall have the power, revocable by the CARAT Indenture Trustee (or by the CARAT Owner Trustee with the consent of the CARAT Indenture Trustee) to instruct the CARAT Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the ~~Servicer~~ Trust Administrator or the CARAT Owner Trustee to carry out its respective duties hereunder or permitting the CARAT Indenture Trustee to carry out its duties under the CARAT Indenture. (iv) The CARAT Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the CARAT Indenture, the Designated Accounts shall be under the exclusive dominion and control of the CARAT Indenture Trustee for the benefit of the Securityholders and the CARAT Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The ~~Servicer~~ Trust Administrator shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the ~~Indenture Trustee~~Account Holder, the ~~Servicer~~ Trust Administrator shall deliver to the ~~Indenture Trustee~~ Account Holder an Opinion of Counsel, acceptable to the ~~Indenture Trustee~~Account Holder, to such effect. (c) ~~[Reserved]~~Pursuant to the Trust Agreement, the Issuing Entity shall possess all right, title and interest in and to all funds on deposit from time to time in the Certificate Distribution Account and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account shall be under the sole dominion and control of the CARAT Owner Trustee for the benefit of the CARAT 20__-SN_ Certificateholder. If, at any time, the Certificate Distribution Account ceases to be an Eligible Deposit Account, the CARAT Owner Trustee (or the Depositor on behalf of the CARAT Owner Trustee, if the Certificate Distribution Account is not then held by the CARAT Owner Trustee or an Affiliate thereof) shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, selected by the CARAT Owner Trustee as to which each Rating Agency may consent (which consent shall not be required if no Rated Notes are outstanding) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Certificate Distribution Account. (d) The CARAT Indenture Trustee, the CARAT Owner Trustee, the Securities Intermediary, ~~the~~ each Account Holder and each other Eligible Deposit Institution with whom a Designated Account or the Certificate Distribution Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Administration Agreement (Central Originating Lease Trust), Trust Sale and Administration Agreement (Central Originating Lease Trust)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2017-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2017-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty (30) days’~~ in each case, mature or, if such Eligible Investment does not mature, be liquidated as set forth in the definition of “Eligible Investments”; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2017-1), Servicing Agreement (Ally Auto Receivables Trust 2017-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2016-4 3 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2016-4 3 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty (30) days’~~ in each case, mature or, if such Eligible Investment does not mature, be liquidated as set forth in the definition of “Eligible Investments”; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2016-3), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2016-3)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2013-4 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-4), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-4)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2014-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2014-2 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-2), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2014-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 1 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2013-4 1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Capital Auto Receivables Asset Trust 2013-1 Accumulation Account (the “Accumulation Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Initial Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-1), Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2013-1)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 5 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 5 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 2 contracts

Samples: Servicing Agreement (Ally Auto Receivables Trust 2011-5), Servicing Agreement (Ally Auto Receivables Trust 2011-5)

Establishment of Accounts. (a) (i) The Servicer, for the benefit of the Financial ~~Parties~~Parties (including the Swap Counterparty), shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2008-A Owner Trust ~~2011-4~~ Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (iii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2008-A Owner Trust ~~2011-4~~ Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (ii) Pursuant to the Trust Agreement, the Servicer, for the benefit of the Certificateholders, shall establish and maintain in the name of the Trust an Eligible Deposit Account known as the Navistar Financial 2008-A Owner Trust Certificate Distribution Account (the “Certificate Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture~~ Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with ~~an Account Holder if~~ the ~~short-term debt obligations of such Account Holder cease to have the Required Deposit Rating~~ Indenture Trustee so long as (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should A) the short-term unsecured debt obligations of ~~an Account Holder no longer~~ the Indenture Trustee have the Required Deposit ~~Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each~~ Rating ~~Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution~~ or (B) ~~with respect to~~ each of the Designated Accounts ~~only, to be moved to the corporate trust department of the Account Holder~~qualifies as an Eligible Deposit Account. All amounts held in ~~Designated Accounts~~ such accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section ~~5.02~~2.11) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such bank or trust company in Eligible Investments; provided, that funds in the Collection Account ~~Holder~~ in an amount not in excess of 20% of the Aggregate Receivables Balance as of the preceding Accounting Date may be invested in investments which have a rating from S&P of “A-1” rather than “A-1+,” if such investments otherwise constitute Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies2.02. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided, however, that Notes held in~~ . Should the ~~Reserve Account may be sold or disposed~~ short-term unsecured debt obligations of ~~prior to their maturity so long as (x) the Servicer directs~~ the Indenture Trustee (or any other bank or trust company with which the Designated Accounts are maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to ~~make such sale or disposition~~exceed 30 calendar days, ~~(y)~~ without consent of the Agent with respect thereto), with the Indenture ~~Trustee gives reasonable prior notice of such disposition~~ Trustee’s assistance as necessary, cause the Designated Accounts (A) to ~~the Administrator and (z) such Notes are sold at~~ be moved to a ~~price equal to~~ bank or ~~greater than the unpaid principal balance thereof if, following such sale~~trust company, the ~~amount on deposit in~~ short-term unsecured debt obligations of which shall have the ~~Reserve Account would~~ Required Deposit Rating, or (B) to be ~~less than the Specified Reserve Account Balance~~moved to an Eligible Deposit Account. Investment Earnings on funds deposited in the Designated Accounts shall be ~~payable to~~ deposited into the ~~Servicer~~Collection Account for distribution in accordance with Section 8.2 of the Indenture. ~~Each Account Holder~~ The Indenture Trustee or the other Person holding a the Designated ~~Account~~ Accounts as provided in this Section ~~5.01(b)(i),~~ 2.02(b)(i) shall be a the “Securities Intermediary.” If a the Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section ~~5.01 and an Opinion of Counsel that such Person can perform such obligations~~2.02. (iii) With respect to the Designated Account Property, the ~~Account Holder~~ Securities Intermediary agrees, by its acceptance hereof, that: (A) ~~Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts.~~ The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~Seller, payable to the order of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller or specially ~~indorsed~~ endorsed to the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited ~~upon receipt of such property~~ to the appropriate Designated Account. (D) Each item of property (whether ~~investments,~~ investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the ~~Issuing Entity~~Issuer, the Servicer, the ~~Depositor~~ Seller or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the ~~Security~~ Securities Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other ~~Person~~ person relating to the Designated Accounts and/or any Financial Assets ~~or other property~~ credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other ~~Person~~ person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the ~~Issuing Entity~~Issuer, the ~~Depositor~~Seller, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.the

Appears in 1 contract

Samples: Servicing Agreement (Navistar Financial Corp)

Establishment of Accounts. (ia) The ~~Servicer,~~ Trustee shall direct the Agreed Bank in writing to establish and maintain on its books and records for the benefit of the ~~Financial Parties, shall establish and maintain in the name~~ Trustee (on behalf of the ~~Indenture Trustee an Eligible Deposit Account known as~~ Certificateholders) all of the ~~Ally Auto Receivables Trust 2011~~following non-~~4 Collection Account~~ interest bearing accounts: (i) a collections account for receipt of Collections (the “~~Collection~~ Collections Account–Rental Proceeds”), (ii) a collections account for receipt of Sales Proceeds (the “Collections Account–Sales Proceeds”), (iii) a distributions account for distributions of Collections (the “Distributions Account–Rental Proceeds”), (iv) a distributions account for distributions of Sales Proceeds (the “Distributions Account–Sales Proceeds”), (v) a distributions account for distributions of proceeds of Permitted Indebtedness (the “Distributions Account—Indebtedness Proceeds”) (vi) the Trustee’s Reserve Account to pay for certain bona fide administrative expenses of the Trustee in respect of its role as such, (vii) the Manager’s Reserve Account to pay for bona fide expenses of the Trust, its subsidiaries and/or relating to the Properties, (viii) a reserve account in which to maintain the Post-Closing Reserves (the “Post-Closing Reserve Account”), ~~bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties.~~and (iiix) ~~The Servicer,~~ a payment account to pay for ~~the benefit~~ amounts due and payable in respect of ~~the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account~~ Permitted Indebtedness (the “~~Note Distribution~~ Indebtedness Payment Account”), ~~bearing an additional designation clearly indicating that~~ in each case in accordance with this Section 5.01 and Section 5.02. From time to time thereafter, the ~~funds deposited therein are held for~~ Trustee will establish such other Accounts as may be authorized or required by this Trust Agreement and the ~~benefit of the Noteholders~~other Trust Transaction Documentation. (ib) ~~Each of the Designated Accounts shall~~ If, at any time, any Account ceases to be ~~initially established with the Indenture Trustee. At any time after the Closing Date~~an Eligible Account, the ~~Servicer~~Trustee shall, ~~upon thirty (30) days’ written notice~~ on a best efforts basis and subject to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shallAgreed Bank’s account opening procedures, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent ~~permitted by applicable laws~~practicable, ~~rules and regulations, be invested, at~~ establish a new account meeting the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary conditions set forth in this Section 5.01 in respect of such Account and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying transfer any ~~Financial Assets credited to the Designated Accounts shall be registered~~ cash in the ~~name of the Securities Intermediary, indorsed~~ existing Account to ~~the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary~~ such new account; and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the ~~Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts~~date such new account is established, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the ~~power~~same designation as the existing Account. If the Agreed Bank should change at any time, ~~revocable by~~ then the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall ~~possess all right, title~~ thereupon promptly establish replacement accounts as necessary at the successor Agreed Bank and ~~interest~~ transfer the Balance of funds in ~~and to all funds on deposit from time to time in~~ each Account then maintained at the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, former Agreed Bank to such ~~effect~~successor Agreed Bank. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Pass Through Trust Agreement (Copper Property CTL Pass Through Trust)

Establishment of Accounts. (a) The Servicer shall establish and maintain: (i) ~~The Servicer, for~~ For the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Collection Account~~ deposit of Collections (the “"Collection Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders. (ii) ~~The Servicer, for~~ For the benefit of the Noteholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Note Distribution Account~~ deposit of distributions to the Noteholders (the “"Note Distribution Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. Each Account shall be an Eligible Deposit Account established initially at The Chase Manhattan Bank. (ib) ~~Each of the Designated Accounts shall be initially established with the Indenture Trustee. At~~ Should any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations depositary of an Account ~~Holder no longer have~~ or of the ~~Required Deposit Rating~~Certificate Distribution Account (including The Chase Manhattan Bank (or an Affiliate thereof)) cease to be either a Qualified Institution or a Qualified Trust Institution, as applicable, then the Servicer shall, ~~within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent),~~ with the ~~Indenture Trustee’s~~ Seller's assistance as necessary, cause ~~each affected Designated Account (A)~~ the related account to be moved to ~~an Account Holder that is an Eligible~~ a Qualified Institution or ~~(B)~~ a Qualified Trust Institution, unless the Rating Agency Condition is satisfied in connection with ~~respect to the Designated Accounts only,~~ such depositary's ceasing to be ~~moved to~~ a Qualified Institution or a Qualified Trust Institution, as the ~~corporate trust department of the Account Holder~~case may be. All amounts held in ~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to~~ the Collection Account ~~pursuant to Section 5.02) shall, to~~ shall be invested by the ~~extent permitted by applicable laws, rules and regulations, be invested,~~ bank or trust company then maintaining the account (at the written direction of the Servicer) in Permitted Investments that mature not later than the Deposit Date next succeeding the date of investment (or, ~~by such Account Holder in Eligible Investments. Such written direction shall constitute certification by~~ if the ~~Servicer that any such investment is authorized by this Section 5.01. Funds deposited~~ Class A-1 Event has occurred, not later than April 9, 1998, in the ~~Reserve Account shall be invested~~ case of investments made on or after the Deposit Date in ~~Eligible Investments which mature (i)~~ March 1998 and prior to the ~~next Distribution~~ Deposit Date ~~or (ii~~in April 1998, in an amount at least equal to the April 1998 Class A-1 Note Distribution) ~~at such later date as shall be otherwise permitted by~~ except, if the ~~Rating Agencies. Investments in Eligible Investments shall be made in the name of~~ Collection Account is maintained with the Indenture Trustee or for investments on which the Indenture Trustee is the obligor (including repurchase agreements on which the Indenture Trustee, in its ~~nominee~~commercial capacity, ~~and such~~ is liable as principal), which investments ~~shall not be sold or disposed of prior to their maturity~~may mature on the next succeeding Distribution Date; provided, however, that ~~Notes~~ once such amounts have been invested by such bank or trust company, as applicable, in Permitted Investments, such Permitted Investments must be held in or maintained until they mature on or before the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount dates described above. Amounts on deposit in the ~~Reserve~~ Note Distribution Account ~~would~~ shall not be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsinvested. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (ivc) The Indenture Trustee shall possess all right, title and interest in ~~and to~~ all funds on deposit from time to time in the ~~Designated~~ Accounts and in all proceeds thereof (~~except~~ excluding Investment Earnings)) and all such funds, investments, proceeds and income shall be part of the Owner Trust Estate. Except as otherwise provided ~~herein or in the Indenture~~herein, the ~~Designated~~ Accounts shall be under the ~~exclusive~~ sole dominion and control of ~~the~~ Indenture Trustee for the benefit of the ~~Securityholders~~ Noteholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment Certificateholders, or the ~~proceeds of such sale~~Noteholders, ~~in either~~ as the case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectmay be. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chase Manhattan Bank Usa)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2017-4 2 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2017-4 2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee~~Trustee as the Account Holder. ~~At any time after~~ Funds deposited in each of the ~~Closing Date~~Designated Accounts (including amounts, if any, which the ~~Servicer~~Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall be invested in (a) Investment Fund A from the period beginning with (and including) the second Business Day of each calendar month and ending with (and including) the fourth Business Day prior to the last Business Day of each calendar month and (b) Investment Fund B from the period beginning with (and including) the third Business Day prior to the last Business Day of each calendar month and ending with (and including) the first business day of the succeeding calendar month. Such investments shall, ~~upon thirty (30) days’~~ in each case, mature or, if such Eligible Investment does not mature, be liquidated as set forth in the definition of “Eligible Investments”; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Eligible Investments identified in the definitions of “Investment Fund A” or “Investment Fund B” with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture ~~Trustee or other Account Holder~~Trustee, ~~shall have the right to instruct an Account Holder to transfer~~ promptly upon any ~~or all~~ investment in each of the Designated Accounts ceasing to ~~another~~ be an Eligible ~~Institution designated by~~ Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Eligible Investment set forth in the respective definitions of “Investment Fund A” or “Investment Fund B.” The Servicer shall have no power or right whatsoever to change or alter any of the initial specifications set forth in ~~such notice. No Designated Account shall be maintained with an Account Holder~~ the definitions of “Investment Fund A” or “Investment Fund B”; provided that if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account, may~~ Account shall be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department)~~. Should~~ , the ~~short-term unsecured debt obligations of an~~ Servicer shall then provide written notice to the Indenture Trustee or other Account Holder ~~no longer have~~ instructing the ~~Required Deposit Rating, then~~ Account Holder to transfer the ~~Servicer shall, within ten (10) Business Days (or such longer period, not~~ Designated Accounts to ~~exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an~~ another Account Holder that is an Eligible ~~Institution~~ Institution; and provided further that should the Account Holder inform the Servicer or ~~(B)~~ Indenture Trustee that no further investments may be made with respect to ~~the Designated Accounts only~~a specific Eligible Investment, to then any additional funds shall be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted invested by ~~applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such~~ that same Account Holder in an Eligible ~~Investments. Such written direction shall constitute certification by~~ Investment in accordance with the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. definitions of “Investment Fund A” and “Investment Fund B.” Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided~~, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition notwithstanding anything to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ contrary provided in ~~the Reserve Account would be less than the Specified Reserve Account Balance~~this Agreement. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ and any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Notwithstanding anything to the contrary in this Agreement, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to acquire any other investments or engage in activities other than specifically provided herein, and, in particular, neither the Servicer nor any agent of the Servicer shall be authorized or empowered to do anything that would cause the Issuing Entity to fail to qualify as a grantor trust for United States federal income tax purposes. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Servicing Agreement (Ally Auto Receivables Trust 2017-2)

Establishment of Accounts. (i) The Servicer, for the benefit of the ~~Financial Parties~~Securityholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 1994-C Owner Trust ~~2011-4~~ Collection Account (the “"Collection Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Securityholders. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 1994-C Owner Trust ~~2011-4~~ Note Distribution Account (the “"Note Distribution Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) Pursuant to the Trust Agreement, the Servicer, for the benefit of the Certificateholders, shall establish and maintain at Chemical Bank in the name of the Owner Trustee an Eligible Deposit Account known as the Navistar Financial 1994-C Owner Trust Certificate Distribution Account (the "Certificate Distribution Account") bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture~~ Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with ~~an Account Holder if~~ the ~~short-term debt obligations of such Account Holder cease to have the Required Deposit Rating~~ Indenture Trustee so long as (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should A) the short-term unsecured debt obligations of ~~an Account Holder no longer~~ the Indenture Trustee have the Required Deposit ~~Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each~~ Rating ~~Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution~~ or (B) ~~with respect to~~ each of the Designated Accounts ~~only, to be moved to~~ are maintained in the corporate trust department of the ~~Account Holder~~Indenture Trustee. All amounts held in ~~Designated Accounts~~ such accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such bank or trust company in Eligible Investments; provided, that funds in the Collection Account ~~Holder~~ in an amount not in excess of 20% of the Aggregate Receivables Balance as of the preceding Accounting Date may be invested in investments which have a rating from Standard & Poor's Ratings Group of "A-1" rather than "A-1+", if such investments otherwise constitute Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature ~~(i)~~ prior to the next Distribution Date ~~or (ii) at such later date~~ except, and then only to the extent, as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided, however, that Notes held in~~ . Should the ~~Reserve Account may be sold or disposed~~ short-term unsecured debt obligations of ~~prior to their maturity so long as (x) the Servicer directs~~ the Indenture Trustee (or any other bank or trust company with which the Designated Accounts are maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to ~~make such sale or disposition~~exceed 30 calendar days, ~~(y)~~ as to which each Rating Agency shall consent), with the Indenture ~~Trustee gives reasonable prior notice~~ Trustee's assistance as necessary, cause the Designated Accounts (A) to be moved to a bank or trust company, the short-term unsecured debt obligations of ~~such disposition~~ which shall have the Required Deposit Rating, or (B) to be moved to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than~~ corporate trust department of the ~~unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance~~Indenture Trustee. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer. Each Account Holder holding a Designated Account~~ Seller except when the Indenture Trustee is acting as ~~provided~~ successor Servicer in ~~this Section 5.01(b)(i),~~ which case such Investment Earnings shall be ~~a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than~~ payable to the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsTrustee as successor Servicer. (ii) With respect to the Designated Account Property, the ~~Account Holder~~ Indenture Trustee agrees, by its acceptance hereof, that: (A) ~~Any~~ any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts~~. The Designated Accounts are accounts~~ ; and each such Eligible Deposit Account shall be subject to ~~which Financial Assets will be credited.~~the exclusive custody and control of the Indenture Trustee, and the Indenture Trustee shall have sole signature authority with respect thereto; (B) ~~All securities or other property underlying~~ any ~~Financial Assets credited to the~~ Designated ~~Accounts~~ Account Property that constitutes Physical Property shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the ~~Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account.~~ Indenture Trustee in accordance with paragraph (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9i) of the ~~New York UCC. (E) If at any time the Securities Intermediary~~ definition of "Delivery" and shall ~~receive any order from~~ be held, pending maturity or disposition, solely by the Indenture Trustee ~~directing transfer~~ or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts a financial intermediary (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as such term is defined in Section 8-~~102(a)(8~~313(4) of the ~~New York~~ UCC) acting solely for the Indenture Trustee; (C) any Designated Account Property that is a book-entry security held through the Federal Reserve System pursuant to federal book-entry regulations shall be delivered in accordance with paragraph (ii) of the definition of "Delivery" and shall be maintained by the Indenture Trustee, pending maturity or disposition, through continued book-entry registration of such ~~other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into,~~ Designated Account Property as described in such paragraph; (D) any ~~agreement with the Issuing Entity, the Depositor, the Servicer, the~~ Designated Account ~~Holder or the Indenture Trustee purporting to limit or condition the obligation~~ Property that is an "uncertificated security" under Article 8 of the ~~Securities Intermediary~~ UCC and that is not governed by clause (C) above shall be delivered to ~~comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of~~ the Indenture Trustee in accordance with paragraph (iii) of the ~~Designated Accounts, the Securities Intermediary has no actual knowledge~~ definition of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify "Delivery" and shall be maintained by the Indenture Trustee, ~~the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies~~ pending maturity or disposition, through continued registration of ~~all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and~~ the Indenture Trustee~~, at the addresses set forth in Appendix B to this Agreement.~~'s (or its nominee's) ownership of such security; and (JE) ~~The Account Holder~~ the Indenture Trustee shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the ~~exclusive~~ sole dominion and control of the Indenture Trustee for the benefit of the ~~Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~Securityholders. (v) The Servicer shall not direct the ~~Account Holder~~ Indenture Trustee to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the ~~Account Holder~~ Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Pursuant to the Trust Agreement, the Owner Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Certificate Distribution Account and in all proceeds thereof. Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee for the benefit of the Certificateholders. If, at any time, the Certificate Distribution Account ceases to be an Eligible Deposit Account, the Servicer shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall cause the Owner Trustee to transfer any cash and/or any investments in the old Certificate Distribution Account to such new Certificate Distribution Account. (d) The Indenture Trustee, the Owner ~~Trustee, the Securities Intermediary, the Account Holder~~ Trustee and each other Eligible Deposit Institution with whom a Designated Account or the Certificate Deposit Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ ' lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Navistar Financial Retail Receivables Corporation)

Establishment of Accounts. (a) The Concentration Account and Lockbox Accounts. (i) The ~~Servicer, for~~ Borrower has established the ~~benefit~~ Concentration Account with the Concentration Account Bank. The Borrower has established with each Lockbox Account Bank one or more Lockbox Accounts. The Borrower agrees that the Administrative Agent shall have exclusive dominion and control of the ~~Financial Parties~~Concentration Account and each Lockbox Account and all monies, instruments and other property from time to time on deposit therein. The Borrower shall ~~establish and maintain~~ not make or cause to be made, or have any ability to make or cause to be made, any withdrawals from the Concentration Account or any Lockbox Account except as provided in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial PartiesSection 6.01(b)(ii) or elsewhere in this Agreement. (ii) The ~~Servicer~~Borrower and the Servicer have instructed all existing Obligors of Transferred Receivables, and shall instruct all future Obligors of such Receivables, to make payments in respect thereof only (A) by check or money order mailed to one or more lockboxes or post office boxes under the control of the Administrative Agent (each a "Lockbox" and collectively the "Lockboxes") or (B) by wire transfer or moneygram directly to a Lockbox Account. Schedule 4.01(q) (as updated by any notice given pursuant to Section 6.01(a)(iii)) lists the Concentration Account, the Concentration Account Bank and all Lockboxes and all Lockbox Account Banks at which the Borrower maintains Lockbox Accounts as of the Closing Date, and such schedule correctly identifies (1) with respect to the Concentration Account Bank and each such Lockbox Account Bank, the name, address and telephone number thereof, (2) with respect to the Concentration Account and each Lockbox Account, the name in which such account is held and the complete account number therefor, and (3) with respect to each Lockbox, the lockbox number and address thereof. The Borrower and the Servicer shall endorse, to the extent necessary, all checks or other instruments received in any Lockbox so that the same can be deposited in the Lockbox Account, in the form so received (with all necessary endorsements), on the first Business Day after the date of receipt thereof. In addition, each of the Borrower and the Servicer shall deposit or cause to be deposited into a Lockbox Account or the Concentration Account all cash, checks, money orders or other proceeds of Transferred Receivables or Borrower Collateral received by it other than in a Lockbox or a Lockbox Account, in the form so received (with all necessary endorsements), and Borrower shall use its best efforts to cause each such deposit to occur not later than the close of business on the first Business Day following the date of receipt thereof (and each such deposit shall be made in all cases by no later than the close of business on the third Business Day following the date of receipt thereof), and until so deposited all such items or other proceeds shall be held in trust for the benefit of the ~~Noteholders, shall establish and maintain in~~ Administrative Agent. Neither the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, Borrower nor the Servicer shall ~~obtain~~ make any deposits into the ~~express agreement~~ Concentration Account, a Lockbox or any Lockbox Account except in accordance with the terms of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated AccountsRelated Document. (iii) If, for any reason, a Lockbox Account Agreement terminates or any Lockbox Account Bank fails to comply with its obligations under the Lockbox Account Agreement to which it is a party, then the Borrower shall promptly notify all Obligors of Transferred Receivables who had previously been instructed to make wire payments to a Lockbox Account maintained at any such Lockbox Account Bank to make all future payments to a new Lockbox Account in accordance with this Section 6.01(a)(iii). If for any reason the Concentration Account Agreement terminates or the Concentration Account Bank fails to comply with its obligations under the Concentration Account Agreement, then a new Concentration Account shall be established in accordance with this Section 6.01(a)(iii). The ~~Servicer~~ Borrower shall not close any such Lockbox Account or the Concentration Account unless it shall have (A) received the ~~power, revocable by the Indenture Trustee (or by the Owner Trustee with the~~ prior written consent of the ~~Indenture Trustee~~Administrative Agent, (B) established a new account with the same Lockbox Account Bank or Concentration Account Bank (as the case may be) or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Lockbox Account Bank or Concentration Account Bank (as the case may be) or with such new depositary institution substantially in the form of such Lockbox Account Agreement or Concentration Account Agreement (as the case may be) or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and the other Related Documents, such new account shall become a Lockbox Account or the Concentration Account (as the case may be), such new agreement shall become a Lockbox Account Agreement and any new depositary institution shall become a Lockbox Account Bank or Concentration Account Bank (as the case may be)), and (D) taken all such action as the Administrative Agent shall require to grant and perfect a first priority Lien (subject only to bankers' liens and setoff rights, which shall be limited in a manner reasonably satisfactory to the Administrative Agent) in such new Lockbox Account or the Concentration Account (as the case may be) to ~~instruct~~ the ~~Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose~~ Lender under Section 8.01 of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings)this Agreement. Except as ~~otherwise provided herein or in~~ permitted by this Section 6.01(a), neither the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, Borrower nor the Servicer shall ~~deliver to~~ open any new Lockbox, Lockbox Account or Concentration Account without the ~~Indenture Trustee an Opinion~~ prior written consent of ~~Counsel, acceptable to~~ the ~~Indenture Trustee, to such effect~~Administrative Agent. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Receivables Sale and Contribution Agreement (Consolidated Freightways Corp)

Establishment of Accounts. (i) The ~~Servicer~~Administrator, for the benefit of the Financial Parties, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 SN2 Collection Account (the “AART Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Financial Parties. (ii) The ~~Servicer~~Administrator, for the benefit of the Noteholders, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 SN2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the AART Indenture Trustee, who shall be the initial Account Holder. At any time after the Closing Date, the ~~Servicer~~Administrator, upon thirty (30) ~~days’~~ days written notice to ~~the~~ AART Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the ~~Servicer~~ Administrator in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in a segregated account in its corporate trust department). Should the short-term ~~unsecured~~ debt obligations of an Account Holder no longer have the Required Deposit Rating, then the ~~Servicer~~ Administrator shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the AART Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution with the Required Deposit Rating or (B) with respect to the Designated Accounts only, to be moved to a segregated account in the corporate trust department of the Account Holder. All amounts held in Designated Accounts ~~(including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the ~~Servicer~~Administrator, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the ~~Servicer~~ Administrator that any such investment is authorized by this Section 5.01. ~~Funds deposited~~ In the absence of such prior written instruction from the Administrator to such Account Holder, the Account Holder shall invest any uninvested funds in ~~the Reserve Account shall be invested in Eligible Investments which mature~~ “BofA Government Plus Reserved (i4151) ~~prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies.~~ Capital Class.” Investments in Eligible Investments shall be made in the name of the AART Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer~~Administrator. Each Account Holder holding a Designated Account as provided in this Section ~~5.01(b)(i)~~5.01, shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the AART Indenture Trustee, the ~~Servicer~~ Administrator shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor, payable to the order of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor or specially indorsed to the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the AART Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the ~~Servicer~~Administrator, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the ~~Servicer~~Administrator, the Account Holder or the AART Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the AART Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any ~~Lien, encumbrance or adverse claim~~ Lien (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the AART Indenture Trustee, the ~~Servicer~~ Administrator and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ or any Designated Account Property simultaneously to each of the ~~Servicer~~ Administrator and the AART Indenture Trustee, at the addresses set forth in Part III of Appendix B A to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The ~~Servicer~~ Administrator shall have the power, revocable by the AART Indenture Trustee (or by the AART Owner Trustee with the consent of the AART Indenture Trustee) to instruct the AART Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the ~~Servicer~~ Administrator or the AART Owner Trustee to carry out its respective duties hereunder or permitting the AART Indenture Trustee to carry out its duties under the AART Indenture. (iv) The AART Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the AART Indenture, the Designated Accounts shall be under the exclusive dominion and control of the AART Indenture Trustee for the benefit of the Securityholders and the AART Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The ~~Servicer~~ Administrator shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the AART Indenture Trustee, the ~~Servicer~~ Administrator shall deliver to the AART Indenture Trustee an Opinion of Counsel, acceptable to the AART Indenture Trustee, to such effect. (c) ~~[Reserved]~~Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account, if any, shall be under the sole dominion and control of the AART Owner Trustee for the benefit of the Certificateholders. If, at any time, such Certificate Distribution Account ceases to be an Eligible Deposit Account, the AART Owner Trustee (or the Administrator on behalf of the AART Owner Trustee, if such Certificate Distribution Account is not then held by the AART Owner Trustee or an Affiliate thereof) shall within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall transfer any cash and any investments to such new Certificate Distribution Account. (d) The AART Indenture Trustee, the AART Owner Trustee, the Securities Intermediary, ~~the~~ each Account Holder and each other Eligible Institution with whom a Designated Account or the Certificate Distribution Account, if any, is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Administration Agreement (Ally Auto Assets LLC)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2006-4 1 Collection Account (the “"Collection Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally~~ Capital Auto Receivables Asset Trust ~~2011~~2006-4 1 Note Distribution Account (the “"Note Distribution Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) [Intentionally Omitted]. (iv) The Servicer, for the benefit of the Obligors, shall establish and maintain in the name of the Indenture Trustee an account known as the Capital Auto Receivables Asset Trust 2006-1 Payment Ahead Servicing Account (the "Payment Ahead Servicing Account"). The Payment Ahead Servicing Account shall not be property of the Issuer. (i) Each of the Designated Accounts and the Payment Ahead Servicing Account shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) ~~days’~~ days written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts or the Payment Ahead Servicing Account to another Eligible Institution designated by the Servicer in such notice. No Designated Account nor the Payment Ahead Servicing Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, but not the Payment Ahead Servicing Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s 's assistance as necessary, cause each affected Designated Account or Payment Ahead Servicing Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts and the Payment Ahead Servicing Account (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts and the Payment Ahead Servicing Account shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “"Securities Intermediary.” " If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~Seller, payable to the order of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller or specially indorsed to the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “"financial asset” " within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the ~~Issuing Entity~~Trust, the Servicer, the ~~Depositor~~ Seller or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s 's jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the ~~Issuing Entity~~Issuer, the ~~Depositor~~Seller, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the ~~Issuing Entity~~ Issuer thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [~~Reserved~~Intentionally Omitted]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Deposit Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ ' lien to which it might otherwise be entitled. (e) At any time that each Monthly Remittance Condition is satisfied, then (x) Payments Ahead need not be remitted to and deposited in the Payment Ahead Servicing Account but instead may be remitted to and held by the Servicer and (y) the Servicer shall not be required to segregate or otherwise hold separate any Payments Ahead, but the Servicer shall be required to remit Applied Payments Ahead to the Collection Account in accordance with Section 4.06(b)(ii). The Servicer shall promptly notify the Indenture Trustee if any Monthly Remittance Condition ceases to be satisfied such that the Payments Ahead will not be remitted in accordance with the prior sentence. Commencing with the first day of the first Monthly Period that begins at least two (2) Business Days after the day on which any Monthly Remittance Condition ceases to be satisfied, the Servicer shall deposit in the Payment Ahead Servicing Account the amount of any Payments Ahead then held by it, and thereafter, for so long as a Monthly Remittance Condition continues to be unsatisfied, the Servicer shall deposit any additional Payments Ahead in the Payments Ahead Servicing Account within two (2) Business Days after receipt thereof. Notwithstanding the foregoing, if a Monthly Remittance Condition is unsatisfied the Servicer may utilize, with respect to the Payments Ahead, an alternative remittance schedule (which may include a remittance schedule utilized by the Servicer at a time when the Monthly Remittance Conditions were satisfied), if the Servicer provides to the Indenture Trustee written confirmation from the Rating Agencies that such alternative remittance schedule will not result in the downgrading or withdrawal by the Rating Agencies of the ratings then assigned to either the Notes or the Certificates. Neither the Indenture Trustee nor the Owner Trustee shall be deemed to have knowledge of any Servicer Default unless such trustee has received notice of such event or circumstance from the other trustee, the Seller or the Servicer in an officer's certificate or from Certificateholders whose Certificates evidence not less than 25% of the Voting Interests as of the close of the preceding Distribution Date or from Noteholders whose Notes evidence not less than 25% of the Outstanding Amount of the Notes as of the close of the preceding Distribution Date or unless a Responsible Officer in the Corporate Trust Office of the Indenture Trustee with knowledge hereof and familiarity herewith has actual knowledge of such event or circumstance.

Appears in 1 contract

Samples: Trust Sale and Servicing Agreement (Capital Auto Receivables Asset Trust 2006-1)

Establishment of Accounts. (ia) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer Issuer hereby directs the Indenture Trustee to ~~make~~ establish and maintain the Trustee Collection Account, the Insured Amounts Account, the Reserve Account, the Swap Counterparty Reserve Account and the Swap Counterparty Floor Account. Each such ~~sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold~~ Account shall be maintained as a segregated account at a ~~price equal~~ Designated Depository Institution to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the ~~Securityholders~~ related Owners and the Note Insurer, unless otherwise specified below. (b) The Indenture Trustee shall establish and maintain the Insured Amounts Account to receive deposits from the Note Insurer; the Insured Amounts Account shall be entitled "Bankers Trust Company of California, N.A. as Indenture Trustee for Xxxxxxxxx Mortgage Funding Trust I, Insured Amounts Account." (c) The Issuer hereby directs the Indenture Trustee to establish the Trustee Collection Account to be maintained as a segregated account entitled "Bankers Trust Company of California, N.A. as Indenture Trustee for Xxxxxxxxx Mortgage Funding Trust I, Trustee Collection Account." On the Closing Date, the Depositor is remitting the amount of $1,220,971.34 in immediately available funds representing the November 1998 distribution on the Pooled Certificates to the Indenture Trustee for deposit into the Trustee Collection Account, and the Indenture Trustee hereby acknowledges receipt of $1,220,971.34 for deposit into the Trustee Collection Account. The Depositor shall ~~have sole signature power~~ (or shall cause the Servicer to) remit any and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested all distributions received by the ~~Indenture Trustee,~~ Depositor or Seller on the ~~Servicer shall deliver~~ Pooled Certificates on any Pooled Certificate Remittance Date after the Closing Date to the Indenture Trustee ~~an Opinion of Counsel, acceptable to~~ in immediately available funds on the ~~Indenture Trustee, to~~ Business Day after such ~~effect. (c) [Reserved]~~Pooled Certificate Remittance Date for deposit into the Trustee Collection Account. (d) The Issuer hereby directs the Indenture Trustee to establish and maintain the Reserve Account entitled "Bankers Trust Company of California, N.A. as Indenture Trustee for Xxxxxxxxx Mortgage Funding Trust I, Reserve Account." Excess Interest will be deposited in the Reserve Account to be held for the benefit of the Noteholders and the Certificateholders. On the Closing Date, the Depositor is remitting or causing to be remitted to the Indenture Trustee, and the ~~Owner~~ Indenture Trustee hereby acknowledges receipt of $150,000 in immediately available funds for deposit into the Reserve Account. (e) The Indenture Trustee shall establish and maintain, for the benefit of the Note Insurer, the Swap Counterparty Reserve Account entitled "Bankers Trust Company of California, N.A. as Indenture Trustee for TMA Mortgage Funding Trust I, Swap Counterparty Reserve Account." On the Closing Date, the Depositor will remit or cause to be remitted to the Indenture Trustee, and the ~~Securities Intermediary~~Indenture Trustee hereby acknowledges receipt of $800,000 in immediately available funds for deposit into the Swap Counterparty Reserve Fund. (f) The Indenture Trustee shall establish and maintain, for the benefit of the Note Insurer, the Swap Counterparty Floor Account ~~Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right~~ entitled "Bankers Trust Company of ~~set-off~~California, ~~counterclaim~~N.A. as Indenture Trustee for TMA Mortgage Trust I, ~~security interest or bankers’ lien to which it might otherwise be entitled~~Swap Counterparty Floor Account."

Appears in 1 contract

Samples: Sale and Servicing Agreement (Thornburg Mortgage Asset Corp)

Establishment of Accounts. (ia) The Servicer, ~~for the benefit~~ on behalf of the ~~Financial Parties~~Owner Trustee and the Indenture Trustee, shall establish ~~and maintain~~ the Collection Account in the name of the Indenture Trustee for the benefit of the Securityholders. The Collection Account shall be a segregated trust account initially established with the Indenture Trustee and maintained with the Indenture Trustee as long as (i) the deposits of the Indenture Trustee have the Required Deposit Rating or (ii) the Collection Account is maintained in a segregated trust account in the trust department of the Indenture Trustee; PROVIDED, HOWEVER, that all amounts held in the Collection Account shall, to the extent permitted by applicable laws, rules and regulations and as directed by the Servicer, be invested by the Indenture Trustee in Eligible Investments; otherwise, such amounts shall be maintained in cash. All such Eligible Investments shall mature not later than the Business Day preceding the next Distribution Date, in such manner that such amounts invested shall be available to make the required distributions on the Distribution Date. Should the short-term unsecured debt obligations of the Indenture Trustee no longer have the Required Deposit Rating then, unless the Collection Account is maintained in segregated trust accounts in the trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's assistance as necessary and within ten Business Days of receipt of notice from the Indenture Trustee that the Indenture Trustee no longer has the Required Deposit Rating, cause the Collection Account (i) to be moved to segregated trust accounts in a bank or trust company, the short-term unsecured debt obligations of which shall have the Required Deposit Rating or (ii) to be moved to the trust department of the Indenture Trustee. (b) Earnings on investment of funds in the Collection Account shall be paid to the Servicer on each Distribution Date as servicing compensation, and any losses and investment expenses shall be charged against the funds on deposit in the Collection Account. (c) Subject to the foregoing, the Servicer, on behalf of the Owner Trustee and the Indenture Trustee, shall establish and maintain the Collection Account as an Eligible Deposit Account ~~known as~~ in the ~~Ally Auto Receivables Trust 2011-4 Collection Account (~~name of and under the ~~“Collection Account”)~~exclusive control of the Indenture Trustee, bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties.~~ Securityholders. The Indenture Trustee will be obligated to transfer all amounts remaining on deposit in the Collection Account on the Distribution Date on which the Notes of all Classes have been paid in full (iior substantially all of the Trust Estate is otherwise released from the lien of the Indenture) ~~The Servicer,~~ to another Eligible Deposit Account established pursuant to the Trust Agreement for the benefit of the ~~Noteholders~~Certificateholders (the "Trust Collection Account"), ~~shall establish~~ and ~~maintain~~ to take all necessary or appropriate actions to transfer all of its right, title and interest in the ~~name~~ Collection Account, all funds or investments held therein and all proceeds thereof, whether or not on behalf of the ~~Indenture~~ Securityholders, to the Owner Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Noteholders. (i) Each of~~ Certificateholders, subject to the ~~Designated Accounts shall be initially established with~~ limitations set forth in the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to amounts held for payment to Noteholders that do not promptly deliver a Note for payment on such Distribution Date. After the ~~Designated Accounts only~~transfer to the Trust Collection Account described in the immediately preceding sentence, references in this Agreement to "Collection Account" shall be deemed to be ~~moved~~ references to the ~~corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the~~ "Trust Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities IntermediaryAccount.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations." (iid) With respect to the ~~Designated~~ Collection Account ~~Property~~and all property held therein, the ~~Account Holder~~ Owner Trustee agrees, by its acceptance ~~hereof~~hereof that, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to on the ~~Designated Accounts shall be registered~~ terms and conditions set forth in the ~~name~~ Indenture, for so long as Notes of any Class remain outstanding, the ~~Securities Intermediary~~Indenture Trustee shall possess all right, ~~indorsed~~ title and interest therein (excluding interest or investment income thereon payable to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the ~~Depositor~~Seller, ~~payable to~~ as the ~~order of~~ case may be), and the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account Accounts shall be ~~treated as a “financial asset” within~~ under the ~~meaning~~ sole dominion and control of ~~Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from~~ the Indenture Trustee ~~directing transfer or redemption of any Financial Asset relating to~~ for the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws benefit of the ~~State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction~~ Noteholders and the ~~Designated Accounts (as well~~ Certificateholders, as the ~~Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into~~case may be, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in ~~Section 5.01(b)(ii)(E) hereof. (H) Except for~~ the ~~claims~~ Indenture. The parties hereto agree that the Issuer, the Owner Trustee and ~~interest~~ the Holders of the ~~Indenture Trustee~~ Class D Certificates have no right, title or interest in the ~~Designated Accounts,~~ Reserve Account or any amounts on deposit therein at any time. The parties hereto agree that the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) , to instruct the Indenture Trustee to make withdrawals and payments from the ~~Designated Accounts~~ Collection Account for the purpose of permitting the ~~Servicer~~ Servicer, Indenture Trustee or the Owner Trustee to carry out its respective duties hereunder or ~~permitting~~ under the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the ~~proceeds of such sale~~Trust Agreement, ~~in either~~ as the case ~~without any further action by any Person, and, in connection with any direction to~~ may be. Notwithstanding the ~~Account Holder to make any such investment or sale, if requested by the Indenture Trustee~~foregoing, the Servicer shall ~~deliver~~ be entitled to withhold, or to be reimbursed from amounts otherwise payable into or on deposit in the ~~Indenture Trustee an Opinion of Counsel~~Collection Account, ~~acceptable~~ as the case may be, amounts previously deposited in the Collection Account but later determined to ~~the Indenture Trustee, to such effect~~have resulted from mistaken deposits or posting. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Nissan Auto Receivables Corp /De)

Establishment of Accounts. ~~(i)~~ The ~~Servicer, for the benefit of the Financial Parties,~~ Servicer shall establish and maintain an Eligible Deposit Account in the name of the Indenture Trustee ~~an Eligible Deposit Account known as~~ on behalf of the ~~Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional~~ Noteholders which shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties.~~ Noteholders into which amounts paid on or with respect to the Receivables will be deposited by the Servicer in accordance with this Agreement and withdrawn by the Indenture Trustee in accordance with the Indenture (~~ii)~~ the "Collection Account"). The ~~Servicer, for the benefit of the Noteholders,~~ Servicer shall also establish and maintain an Eligible Deposit Account in the name of the Indenture Trustee ~~an Eligible Deposit Account known as~~ on behalf of the ~~Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional~~ Noteholders which shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. , into which amounts will be deposited and withdrawn by the Indenture Trustee in accordance with the Indenture (~~i) Each~~ the "Excess Funding Account"). As and to the extent provided in a Series Supplement, the Servicer shall also establish and maintain for each series of Notes each Note Distribution Account and each Reserve Account described in such Series Supplement in accordance with the terms of such Series Supplement. If a Designated Account ceases to be an Eligible Deposit Account for any reason, including as a result of the institution at which such Designated Account is maintained ceasing to be an Eligible Institution, the Servicer shall, with the Indenture Trustee's assistance as necessary, cause such Designated Account to be an Eligible Deposit Account. Unless otherwise provided in the applicable Series Supplement, funds in any Designated Account shall be invested in Eligible Investments. The Indenture Trustee shall possess all right, title and interest in all funds from time to time on deposit in, and all Eligible Investments credited to, the Designated Accounts and in all proceeds thereof. The Designated Accounts shall be ~~initially established with~~ under the sole dominion and control of the Indenture ~~Trustee~~Trustee for the benefit of the Noteholders. At If, at any ~~time after the Closing Date~~time, any Designated Account ceases to be an Eligible Deposit Account, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ~~ten (10)~~ 10 Business Days (or such longer period, not to exceed thirty ~~(30)~~ calendar days, as to which each Rating Agency ~~shall~~ may consent~~), with~~ ) of determining or receiving notice from the Indenture ~~Trustee’s assistance as necessary, cause each affected~~ Trustee that any Designated Account ~~(A) to be moved to an Account Holder that~~ is no longer an Eligible ~~Institution or (B) with respect to the Designated Accounts only~~Deposit Account, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made establish in the name of the Indenture Trustee ~~or its nominee~~a substitute Eligible Deposit Account as such Designated Account, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs instruct the Indenture Trustee or the Issuer as applicable, in writing, to ~~make~~ transfer any cash and/or any Eligible Investments to such ~~sale or disposition~~new Designated Account and, ~~(y)~~ from the ~~Indenture Trustee gives reasonable prior notice of~~ date any such ~~disposition to the Administrator and (z)~~ substitute account is established, such ~~Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would~~ account shall be ~~less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in~~ the Designated ~~Accounts shall be payable to~~ Account. Neither the Transferor nor the Servicer~~. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i)~~, nor any person or entity claiming by, through or under the Transferor or Servicer, shall ~~be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee~~have any right, ~~the Servicer shall obtain the express agreement of such Person~~ title or interest in, or any right to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Propertywithdraw any amount from, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture ~~Trustee (or by the Owner Trustee with the consent of the Indenture~~ Trustee) , to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the ~~purpose~~ purposes of ~~permitting~~ carrying out the ~~Servicer or the Owner Trustee to carry out its respective~~ Servicer's duties ~~hereunder~~ specified in this Agreement or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Servicing Agreement (Navistar Financial Corp)

Establishment of Accounts. (a) The Servicer shall establish and maintain: (i) ~~The Servicer, for~~ For the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Collection Account~~ deposit of Collections (the “"Collection Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders. (ii) ~~The Servicer, for~~ For the benefit of the Noteholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Note Distribution Account~~ deposit of distributions to the Noteholders (the “"Note Distribution Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. Each Account shall be an Eligible Deposit Account established initially at The Chase Manhattan Bank. (ib) ~~Each of the Designated Accounts shall be initially established with the Indenture Trustee. At~~ Should any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations depositary of an Account ~~Holder no longer have~~ or of the ~~Required Deposit Rating~~Certificate Distribution Account (including The Chase Manhattan Bank (or an Affiliate thereof)) cease to be either a Qualified Institution or a Qualified Trust Institution, as applicable, then the Servicer shall, ~~within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent),~~ with the ~~Indenture Trustee’s~~ Seller's assistance as necessary, cause ~~each affected Designated Account (A)~~ the related account to be moved to ~~an Account Holder that is an Eligible~~ a Qualified Institution or ~~(B)~~ a Qualified Trust Institution, unless the Rating Agency Condition is satisfied in connection with ~~respect to the Designated Accounts only,~~ such depositary's ceasing to be ~~moved to~~ a Qualified Institution or a Qualified Trust Institution, as the ~~corporate trust department of the Account Holder~~case may be. All amounts held in ~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to~~ the Collection Account ~~pursuant to Section 5.02) shall, to~~ shall be invested by the ~~extent permitted by applicable laws, rules and regulations, be invested,~~ bank or trust company then maintaining the account (at the written direction of the Servicer) in Permitted Investments that mature not later than the Deposit Date next succeeding the date of investment (or, ~~by such Account Holder in Eligible Investments. Such written direction shall constitute certification by~~ if the ~~Servicer that any such investment is authorized by this Section 5.01. Funds deposited~~ Class A-1 Event has occurred not later than January 9, 1998, in the ~~Reserve Account shall be invested in Eligible Investments which mature (i)~~ case of investments made prior to the ~~next Distribution~~ Deposit Date ~~or (ii~~in January 1998, in an amount at least equal to the January 1998 Class A-1 Note Distribution) ~~at such later date as shall be otherwise permitted by~~ except, if the ~~Rating Agencies. Investments in Eligible Investments shall be made in the name of~~ Collection Account is maintained with the Indenture Trustee or for investments on which the Indenture Trustee is the obligor (including repurchase agreements on which the Indenture Trustee, in its ~~nominee~~commercial capacity, ~~and such~~ is liable as principal), which investments ~~shall not be sold or disposed of prior to their maturity~~may mature on the next succeeding Distribution Date; provided, however, that ~~Notes~~ once such amounts have been invested by such bank or trust company, as applicable, in Permitted Investments, such Permitted Investments must be held in or maintained until they mature on or before the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount dates described above. Amounts on deposit in the ~~Reserve~~ Note Distribution Account ~~would~~ shall not be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsinvested. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (ivc) The Indenture Trustee shall possess all right, title and interest in ~~and to~~ all funds on deposit from time to time in the ~~Designated~~ Accounts and in all proceeds thereof (~~except~~ excluding Investment Earnings)) and all such funds, investments, proceeds and income shall be part of the Owner Trust Estate. Except as otherwise provided ~~herein or in the Indenture~~herein, the ~~Designated~~ Accounts shall be under the ~~exclusive~~ sole dominion and control of ~~the~~ Indenture Trustee for the benefit of the ~~Securityholders~~ Noteholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment Certificateholders, or the ~~proceeds of such sale~~Noteholders, ~~in either~~ as the case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectmay be. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chase Manhattan Bank Usa)

Establishment of Accounts. (ia) The ~~Servicer~~Issuer, for the benefit of the ~~Financial Parties~~Noteholders, shall cause the Indenture Trustee to establish and maintain in the name of the Indenture Trustee an three non-interest bearing Eligible ~~Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account~~ Accounts (respectively, the “Collection Account”, the “Principal Distribution Account” and the “Reserve Account”), each bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of Deutsche Bank Trust Company Americas as Indenture Trustee on behalf of the ~~Financial Parties~~Noteholders. (iib) ~~The Servicer~~Funds deposited in each of the Trust Accounts (including amounts, if any, which the Servicer is required to remit to the Collection Account pursuant to Section 5.02) shall be invested first in Federated Prime Obligations Fund #143 for so long as Federated Prime Obligations Fund #143 is a Permitted Investment. If Federated Prime Obligations Fund #143 ceases to be a Permitted Investment, the funds deposited in each of the Trust Accounts shall second be held in Xxxxxxx Xxxxx Prime Obligations Fund #1235 for so long as Xxxxxxx Sachs Prime Obligations Fund #1235 is a Permitted Investment. If Xxxxxxx Xxxxx Prime Obligations Fund #1235 ceases to be a Permitted Investment, the funds deposited in each of the Trust Accounts shall third be held in JPM Prime Money Fund #349 for so long as JPM Prime Money Fund #349 is a Permitted Investment. If JPM Prime Money Fund #349 ceases to be a Permitted Investment, the funds deposited in each of the Trust Accounts shall be invested at the written direction of the Servicer in a money market mutual fund (provided such fund is a Permitted Investment) that has a principal investment strategy and an investment objective that are each substantially identical to Federated Prime Obligations Fund #143. Such investments shall mature, in the case of the Reserve Account, prior to the Business Day prior to the next Payment Date, and, in the case of the Collection Account, on the Payment Date in the Collection Period following the Collection Period during which the investment was made; provided that neither the Servicer nor the Indenture Trustee shall have the power or right to change or alter the particular Permitted Investments identified in the preceding four sentences with respect to which such funds are invested; and provided further that the Servicer shall provide written notice to the Indenture Trustee, promptly upon any investment in each of the Trust Accounts ceasing to be a Permitted Investment, and such notification shall include an instruction to the Indenture Trustee to withdraw the funds from the ineligible investment and to deposit such funds into the applicable Permitted Investment set forth in this Section 5.01(b). All Permitted Investments shall be held by the Indenture Trustee for the benefit of the Noteholders, ~~shall establish~~ and ~~maintain~~ no Permitted Investments may be purchased at a premium. Amounts invested in Permitted Investments may not be converted into cash, sold or otherwise disposed of other than (i) upon maturity of the related investment, (ii) upon the date the related investment no longer meets the investment criteria of a Permitted Investment, or (iii) on any Payment Date, in order to allow the amount invested to be distributed to the Noteholders or Certificateholders in accordance with Section 5.04. (c) For so long as CRB is acting as Servicer hereunder, in the ~~name~~ event that there are Net Investment Losses in Permitted Investments chosen by the Servicer, the Servicer shall deposit the amount of such Net Investment Losses into the Collection Account no later than one Business Day prior to the Payment Date. The Indenture Trustee shall not be held liable in any way for any Net Investment Losses, except for losses attributable to the Indenture Trustee’s failure to make payments on such Permitted Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as Indenture Trustee, in accordance with their terms. (d) (i) The Indenture Trustee shall possess all right, title and interest in all funds and investment property on deposit from time to time in or credited to the Trust Accounts and in all proceeds thereof (including all income thereon) and all such funds, investment property, proceeds and income shall be part of the assets of the Issuer, except as otherwise set forth herein. The Trust Accounts shall be under the sole dominion and control of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders~~. (i) Each~~ . The Servicer shall have no power or right to change or alter any of the ~~Designated Accounts shall~~ foregoing initial specifications in Section 5.01(d); provided that if, at any time, any Trust Account ceases to be ~~initially established with the Indenture Trustee. At any time after the Closing Date~~an Eligible Account, ~~the Servicer, upon thirty (30) days’ written notice to~~ the Indenture Trustee (or ~~other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by~~ the Servicer ~~in such notice. No Designated Account~~ on its behalf) shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Trust Account as an Eligible Account and shall ~~consent), with~~ transfer any cash and/or any investments from the ~~Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder~~ account that is no longer an Eligible ~~Institution or (B) with respect~~ Account to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated new Trust Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement

Establishment of Accounts. (a) The Lockbox Accounts. (i) The ~~Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit~~ Seller has established with each Lockbox Account ~~known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating~~ Bank one or more Lockbox Accounts. The Seller agrees that the ~~funds deposited therein are held for the benefit~~ Administrative Agent shall have exclusive dominion and control of ~~the Financial Parties~~each Lockbox Account and all monies, instruments and other property from time to time on deposit therein. The Seller shall not make or cause to be made, or have any ability to make or cause to be made, any withdrawals from any Lockbox Account except as provided in Section 6.1(b)(ii). (ii) The ~~Servicer~~Seller and the Servicer have instructed all existing Obligors of Transferred Receivables, and shall instruct all future Obligors of any Transferred Receivables, to make payments in respect thereof only (A) by check or money order mailed to one or more lockboxes or post office boxes under the control of the Administrative Agent (each a "Lockbox" and collectively the "Lockboxes") or (B) by wire transfer or moneygram directly to a Lockbox Account. Schedule 4.1(r) lists all Lockboxes and all Lockbox Account Banks at which the Seller maintains Lockbox Accounts as of the Closing Date, and such schedule correctly identifies (1) with respect to each such Lockbox Account Bank, the name, address and telephone number thereof, (2) with respect to each Lockbox Account, the name in which such account is held and the complete account number therefor, and (3) with respect to each Lockbox, the lockbox number and address thereof. The Seller and the Servicer shall endorse, to the extent necessary, all checks or other instruments received in any Lockbox so that the same can be deposited in the Lockbox Account, in the form so received (with all necessary endorsements), within one (1) Business Day after the date of receipt thereof. In addition, each of the Seller and the Servicer shall deposit or cause to be deposited into a Lockbox Account all cash, checks, money orders or other proceeds of Transferred Receivables or Seller Collateral received by it other than in a Lockbox or a Lockbox Account, in the form so received (with all necessary endorsements), not later than the close of business on the first (1st) Business Day following the date of receipt thereof, and until so deposited all such items or other proceeds shall be held in trust for the benefit of the ~~Noteholders, shall establish and maintain in~~ Collateral Agent. Neither the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, Seller nor the Servicer shall ~~obtain~~ make any deposits into a Lockbox or any Lockbox Account except in accordance with the ~~express agreement~~ terms of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated AccountsRelated Document. (iii) If, for any reason, a Lockbox Account Agreement terminates or any Lockbox Account Bank fails to comply with its obligations under the Lockbox Account Agreement to which it is a party, then the Seller shall promptly notify all Obligors of Transferred Receivables who had previously been instructed to make wire payments to a Lockbox Account maintained at any such Lockbox Account Bank to make all future payments to a new Lockbox Account in accordance with this Section 6.1(a)(iii). The ~~Servicer~~ Seller shall not close any such Lockbox Account unless it shall have (A) received the ~~power, revocable by the Indenture Trustee (or by the Owner Trustee with the~~ prior written consent of the ~~Indenture Trustee~~Administrative Agent, (B) established a new account with the same Lockbox Account Bank or with a new depositary institution satisfactory to ~~instruct~~ the ~~Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer~~ Administrative Agent, (C) entered into an agreement covering such new account with such Lockbox Account Bank or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time with such new depositary institution substantially in the ~~Designated Accounts and~~ form of such Lockbox Account Agreement or that is satisfactory in all ~~proceeds thereof~~ respects to the Administrative Agent (~~except Investment Earnings~~whereupon, for all purposes of this Agreement and the other Related Documents, such new account shall become a Lockbox Account, such new agreement shall become a Lockbox Account Agreement and any new depositary institution shall become a Lockbox Account Bank), and (D) taken all such actions as the Administrative Agent shall require to grant and perfect a first priority Lien in such new Lockbox Account to the Purchaser under Section 8.1 of this Agreement. Except as ~~otherwise provided herein or in~~ permitted by this Section 6.1(a), neither the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, Seller nor the Servicer shall ~~deliver to~~ open any new Lockbox or Lockbox Account without the ~~Indenture Trustee an Opinion~~ prior written consent of ~~Counsel, acceptable to~~ the ~~Indenture Trustee, to such effect~~Administrative Agent. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Receivables Purchase and Servicing Agreement (Advancepcs)

Establishment of Accounts. (a) The Lockbox Accounts. -------------------- (i) The ~~Servicer~~Borrower has established with each Lockbox Bank one or more Lockbox Accounts. The Borrower agrees that the Administrative Agent shall have exclusive dominion and control of each Lockbox Account and all monies, instruments and other property from time to time on deposit therein. The Borrower shall not make or cause to be made, or have any ability to make or cause to be made, any withdrawals from any Lockbox Account except as provided in Section 6.01(b)(ii). ------------------- (ii) The Borrower and the Servicer have instructed all existing Obligors of Transferred Receivables, and shall instruct all future Obligors of such Receivables, to make payments in respect thereof only (A) by check or money order mailed to one or more lockboxes or post office boxes under the control of the Administrative Agent (each a "Lockbox" and collectively ------- the "Lockboxes") or (B) by wire transfer or moneygram directly to a Lockbox --------- Account. Schedule 4.01(q) lists all Lockboxes and all Lockbox Banks at ---------------- which the Borrower maintains Lockbox Accounts as of the Effective Date, and such schedule correctly identifies (1) with respect to each such Lockbox Bank, the name, address and telephone number thereof, (2) with respect to each Lockbox Account, the name in which such account is held and the complete account number therefor, and (3) with respect to each Lockbox, the lockbox number and address thereof. The Borrower and the Servicer shall endorse, to the extent necessary, all checks or other instruments received in any Lockbox so that the same can be deposited in the Lockbox Account, in the form so received (with all necessary endorsements), on the first Business Day after the date of receipt thereof. In addition, each of the Borrower and the Servicer shall deposit or cause to be deposited into a Lockbox Account all cash, checks, money orders or other proceeds of Transferred Receivables or Borrower Collateral received by it other than in a Lockbox or a Lockbox Account, in the form so received (with all necessary endorsements), not later than the close of business on the first Business Day following the date of receipt thereof, and until so deposited all such items or other proceeds shall be held in trust for the benefit of the ~~Financial Parties, shall establish and maintain in~~ Administrative Agent. Neither the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, Borrower nor the Servicer shall ~~obtain~~ make any deposits into a Lockbox or any Lockbox Account except in accordance with the ~~express agreement~~ terms of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated AccountsRelated Document. (iii) If, for any reason, a Lockbox Account Agreement terminates or any Lockbox Bank fails to comply with its obligations under the Lockbox Account Agreement to which it is a party, then the Borrower shall promptly notify all Obligors of Transferred Receivables who had previously been instructed to make wire payments to a Lockbox Account maintained at any such Lockbox Bank to make all future payments to a new Lockbox Account in accordance with this Section 6.01(a)(iii). The ~~Servicer~~ Borrower shall not close -------------------- any such Lockbox Account unless it shall have (A) received the ~~power, revocable by the Indenture Trustee (or by the Owner Trustee with the~~ prior written consent of the ~~Indenture Trustee~~Administrative Agent, (B) established a new account with the same Lockbox Bank or with a new depositary institution satisfactory to ~~instruct~~ the ~~Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer~~ Administrative Agent, (C) entered into an agreement covering such new account with such Lockbox Bank or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time with such new depositary institution substantially in the ~~Designated Accounts and~~ form of such Lockbox Account Agreement or that is satisfactory in all ~~proceeds thereof~~ respects to the Administrative Agent (~~except Investment Earnings). Except as otherwise provided herein or in the Indenture~~whereupon, ~~the Designated Accounts shall be under the exclusive dominion and control~~ for all purposes of ~~the Indenture Trustee for the benefit of the Securityholders~~ this Agreement and the ~~Indenture Trustee~~ other Related Documents, such new account shall ~~have sole signature power~~ become a Lockbox Account, such new agreement shall become a Lockbox Account Agreement and ~~authority with respect thereto.~~ any new depositary institution shall become a Lockbox Bank), and (vD) ~~The Servicer~~ taken all such action as the Administrative Agent shall ~~not direct the Account Holder~~ require to ~~make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted~~ grant and ~~perfected~~ perfect a first priority Lien in such ~~account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction~~ new Lockbox Account to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.Lender under

Appears in 1 contract

Samples: Receivables Funding Agreement (Imperial Sugar Co /New/)

Establishment of Accounts. (i) The ~~Servicer~~Administrator, for the benefit of the Financial Parties, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 SN1 Collection Account (the “AART Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Financial Parties. (ii) The ~~Servicer~~Administrator, for the benefit of the Noteholders, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 SN1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the AART Indenture Trustee, who shall be the initial Account Holder. At any time after the Closing Date, the ~~Servicer~~Administrator, upon thirty (30) ~~days’~~ days written notice to ~~the~~ AART Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the ~~Servicer~~ Administrator in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in a segregated account in its corporate trust department). Should the short-term ~~unsecured~~ debt obligations of an Account Holder no longer have the Required Deposit Rating, then the ~~Servicer~~ Administrator shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the AART Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution with the Required Deposit Rating or (B) with respect to the Designated Accounts only, to be moved to a segregated account in the corporate trust department of the Account Holder. All amounts held in Designated Accounts ~~(including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the ~~Servicer~~Administrator, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the ~~Servicer~~ Administrator that any such investment is authorized by this Section 5.01. ~~Funds deposited~~ In the absence of such prior written instruction from the Administrator to such Account Holder, the Account Holder shall invest any uninvested funds in ~~the Reserve Account shall be invested in Eligible Investments which mature~~ “BofA Government Plus Reserved (i4151) ~~prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies.~~ Capital Class.” Investments in Eligible Investments shall be made in the name of the AART Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer~~Administrator. Each Account Holder holding a Designated Account as provided in this Section ~~5.01(b)(i)~~5.01, shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the AART Indenture Trustee, the ~~Servicer~~ Administrator shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor, payable to the order of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor or specially indorsed to the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the AART Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the ~~Servicer~~Administrator, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the ~~Servicer~~Administrator, the Account Holder or the AART Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the AART Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any ~~Lien, encumbrance or adverse claim~~ Lien (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the AART Indenture Trustee, the ~~Servicer~~ Administrator and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ or any Designated Account Property simultaneously to each of the ~~Servicer~~ Administrator and the AART Indenture Trustee, at the addresses set forth in Part III of Appendix B A to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The ~~Servicer~~ Administrator shall have the power, revocable by the AART Indenture Trustee (or by the AART Owner Trustee with the consent of the AART Indenture Trustee) to instruct the AART Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the ~~Servicer~~ Administrator or the AART Owner Trustee to carry out its respective duties hereunder or permitting the AART Indenture Trustee to carry out its duties under the AART Indenture. (iv) The AART Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the AART Indenture, the Designated Accounts shall be under the exclusive dominion and control of the AART Indenture Trustee for the benefit of the Securityholders and the AART Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The ~~Servicer~~ Administrator shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the AART Indenture Trustee, the ~~Servicer~~ Administrator shall deliver to the AART Indenture Trustee an Opinion of Counsel, acceptable to the AART Indenture Trustee, to such effect. (c) ~~[Reserved]~~Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account, if any, shall be under the sole dominion and control of the AART Owner Trustee for the benefit of the Certificateholders. If, at any time, such Certificate Distribution Account ceases to be an Eligible Deposit Account, the AART Owner Trustee (or the Administrator on behalf of the AART Owner Trustee, if such Certificate Distribution Account is not then held by the AART Owner Trustee or an Affiliate thereof) shall within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall transfer any cash and any investments to such new Certificate Distribution Account. (d) The AART Indenture Trustee, the AART Owner Trustee, the Securities Intermediary, ~~the~~ each Account Holder and each other Eligible Institution with whom a Designated Account or the Certificate Distribution Account, if any, is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Administration Agreement (Ally Auto Assets LLC)

Establishment of Accounts. (i) The ~~Servicer~~Administrator, for the benefit of the Financial Parties, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 SN1 Collection Account (the “AART Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Financial Parties. (ii) The ~~Servicer~~Administrator, for the benefit of the Noteholders, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2015-4 SN1 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the AART Indenture Trustee, who shall be the initial Account Holder. At any time after the Closing Date, the ~~Servicer~~Administrator, upon thirty (30) ~~days’~~ days written notice to ~~the~~ AART Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the ~~Servicer~~ Administrator in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in a segregated account in its corporate trust department). Should the short-term ~~unsecured~~ debt obligations of an Account Holder no longer have the Required Deposit Rating, then the ~~Servicer~~ Administrator shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the AART Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution with the Required Deposit Rating or (B) with respect to the Designated Accounts only, to be moved to a segregated account in the corporate trust department of the Account Holder. All amounts held in Designated Accounts ~~(including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the ~~Servicer~~Administrator, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the ~~Servicer~~ Administrator that any such investment is authorized by this Section 5.01. ~~Funds deposited~~ In the absence of such prior written instruction from the Administrator to such Account Holder, the Account Holder shall invest any uninvested funds in ~~the Reserve Account shall be invested in Eligible Investments which mature~~ “Xxxxxxx Sachs FS Government Fund, Institutional Class (~~i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies.~~ 465).” Investments in Eligible Investments shall be made in the name of the AART Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer~~Administrator. Each Account Holder holding a Designated Account as provided in this Section ~~5.01(b)(i)~~5.01, shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the AART Indenture Trustee, the ~~Servicer~~ Administrator shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor, payable to the order of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor or specially indorsed to the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the AART Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the ~~Servicer~~Administrator, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the ~~Servicer~~Administrator, the Account Holder or the AART Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the AART Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any ~~Lien, encumbrance or adverse claim~~ Lien (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the AART Indenture Trustee, the ~~Servicer~~ Administrator and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ or any Designated Account Property simultaneously to each of the ~~Servicer~~ Administrator and the AART Indenture Trustee, at the addresses set forth in Part III of Appendix B A to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The ~~Servicer~~ Administrator shall have the power, revocable by the AART Indenture Trustee (or by the AART Owner Trustee with the consent of the AART Indenture Trustee) to instruct the AART Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the ~~Servicer~~ Administrator or the AART Owner Trustee to carry out its respective duties hereunder or permitting the AART Indenture Trustee to carry out its duties under the AART Indenture. (iv) The AART Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the AART Indenture, the Designated Accounts shall be under the exclusive dominion and control of the AART Indenture Trustee for the benefit of the Securityholders and the AART Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The ~~Servicer~~ Administrator shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the AART Indenture Trustee, the ~~Servicer~~ Administrator shall deliver to the AART Indenture Trustee an Opinion of Counsel, acceptable to the AART Indenture Trustee, to such effect. (c) ~~[Reserved]~~Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account, if any, shall be under the sole dominion and control of the AART Owner Trustee for the benefit of the Certificateholders. If, at any time, such Certificate Distribution Account ceases to be an Eligible Deposit Account, the AART Owner Trustee (or the Administrator on behalf of the AART Owner Trustee, if such Certificate Distribution Account is not then held by the AART Owner Trustee or an Affiliate thereof) shall within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall transfer any cash and any investments to such new Certificate Distribution Account. (d) The AART Indenture Trustee, the AART Owner Trustee, the Securities Intermediary, ~~the~~ each Account Holder and each other Eligible Institution with whom a Designated Account or the Certificate Distribution Account, if any, is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Administration Agreement (Ally Auto Assets LLC)

Establishment of Accounts. (a) The Servicer shall establish and maintain: (i) ~~The Servicer, for~~ For the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Collection Account~~ deposit of Collections (the “"Collection Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders. (ii) ~~The Servicer, for~~ For the benefit of the Noteholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Note Distribution Account~~ deposit of distributions to the Noteholders (the “"Note Distribution Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. Each Account shall be an Eligible Deposit Account established initially at Chase. (ib) ~~Each of the Designated Accounts shall be initially established with the Indenture Trustee. At~~ Should any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations depositary of an Account ~~Holder no longer have~~ or of the ~~Required Deposit Rating~~Certificate Distribution Account (including Chase (or an Affiliate thereof)) cease to be either a Qualified Institution or a Qualified Trust Institution, as applicable, then the Servicer shall, ~~within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent),~~ with the ~~Indenture Trustee’s~~ Seller's assistance as necessary, cause ~~each affected Designated~~ the related Account ~~(A)~~ to be moved to ~~an Account Holder that is an Eligible~~ a Qualified Institution or ~~(B)~~ a Qualified Trust Institution, unless the Rating Agency Condition is satisfied in connection with ~~respect to the Designated Accounts only,~~ such depositary's ceasing to be ~~moved to~~ a Qualified Institution or a Qualified Trust Institution, as the ~~corporate trust department of the Account Holder~~case may be. All amounts held in ~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to~~ the Collection Account ~~pursuant to Section 5.02) shall, to~~ shall be invested by the ~~extent permitted by applicable laws, rules and regulations, be invested,~~ bank or trust company then maintaining the account (at the written direction of the Servicer) in Permitted Investments that mature not later than the Deposit Date next succeeding the date of investment (or, ~~by such Account Holder in Eligible Investments. Such written direction shall constitute certification by~~ if the ~~Servicer that any such investment is authorized by this Section 5.01. Funds deposited~~ Class A-1 Event has occurred, not later than March 11, 1999, in the ~~Reserve Account shall be invested~~ case of investments made on or after the Deposit Date in ~~Eligible Investments which mature (i)~~ February 1999 and prior to the ~~next Distribution~~ Deposit Date ~~or (ii~~in March 1999, in an amount at least equal to the March 1999 Class A-1 Note Distribution) ~~at such later date as shall be otherwise permitted by~~ except, if the ~~Rating Agencies. Investments in Eligible Investments shall be made in the name of~~ Collection Account is maintained with the Indenture Trustee or for investments on which the Indenture Trustee is the obligor (including repurchase agreements on which the Indenture Trustee, in its ~~nominee~~commercial capacity, ~~and such~~ is liable as principal), which investments ~~shall not be sold or disposed of prior to their maturity~~may mature on the next succeeding Distribution Date; provided, however, that ~~Notes~~ once such amounts have been invested by such bank or trust company, as applicable, in Permitted Investments, such Permitted Investments must be held in or maintained until they mature on or before the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount dates described above. Amounts on deposit in the ~~Reserve~~ Note Distribution Account ~~would~~ shall not be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsinvested. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (ivc) The Indenture Trustee shall possess all right, title and interest in ~~and to~~ all funds on deposit from time to time in the ~~Designated~~ Accounts and in all proceeds thereof (~~except~~ excluding Investment Earnings)) and all such funds, investments, proceeds and income shall be part of the Owner Trust Estate. Except as otherwise provided ~~herein or in the Indenture~~herein, the ~~Designated~~ Accounts shall be under the ~~exclusive~~ sole dominion and control of ~~the~~ Indenture Trustee for the benefit of the ~~Securityholders~~ Noteholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment Certificateholders, or the ~~proceeds of such sale~~Noteholders, ~~in either~~ as the case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectmay be. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chase Manhattan Bank Usa)

Establishment of Accounts. (ia) The ~~Servicer~~Accounts Bank hereby agrees and confirms that it has established, ~~for the benefit of the Financial Parties, shall~~ or will establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee on or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the ~~next Distribution Date or (ii) at such later~~ date ~~as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee~~hereof, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and maintain until the termination of this Agreement ~~will not enter into, any agreement~~ in accordance with ~~any other Person relating to the Designated Accounts and/or any Financial Assets~~ Article VI (Termination of Agreement) or ~~other property credited thereto pursuant to which it has agreed to comply with entitlement orders (~~as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as otherwise expressly set forth ~~in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts~~herein, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the ~~Servicer~~ following segregated, special, collateral accounts listed or described below (each to be referred to herein by the defined term provided below, and collectively, together with any Additional Debt Service Reserve Account or other account created pursuant to Section 2.01(c) below, the “Accounts”), in the name of the Borrower, and subject to the exclusive “control” of the Common Security Trustee pursuant to Sections 3.01(c)-(e) (Securities Accounts; Deposit Accounts; the Accounts Bank), as applicable: Name of Account at the Accounts Bank Account Number Defined Term for Account Senior Secured Notes Debt Service Reserve Account 00000000 “Senior Secured Notes Debt Service Reserve Account” Construction Account 00000000 “Construction Account” Debt Payment Account 00000000 “Debt Payment Account” Distribution Account 00000000 “Distribution Account” Name of Account at the Accounts Bank Account Number Defined Term for Account Equity Proceeds Account 00000000 “Equity Proceeds Account” Insurance/Condemnation Proceeds Account 00000000 “Insurance/ Condemnation Proceeds Account” Operating Account 00000000 “Operating Account” Revenue Account 00000000 “Revenue Account” Additional Proceeds Account 00000000 “Additional Proceeds Account” (b) The Borrower may direct the Accounts Bank in writing to create, and upon receipt of such written direction, the Accounts Bank shall create, any Additional Debt Service Reserve Account when required pursuant to the terms of any Secured Replacement Debt that provides for a “debt service reserve requirement”, and the ~~Indenture Trustee~~Accounts Bank shall provide written notice to the Borrower and the Common Security Trustee of the account number and wire instructions for such newly established Additional Debt Service Reserve Account. Each Additional Debt Service Reserve Account shall be funded in accordance with the Financing Documents and/or pursuant to Section 5.03(b) (Revenue Account) and amounts on deposit in such Additional Debt Service Reserve Account shall be applied in accordance with the applicable Senior Debt Instrument governing such Senior Debt; provided, ~~at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property~~ that amounts on deposit in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Debt Service Reserve Accounts shall be ~~under~~ used solely for the ~~exclusive dominion and control~~ payments of the ~~Indenture Trustee~~ applicable Senior Debt for ~~the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the~~ which such Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectwas established. (c) ~~[Reserved]~~The Borrower may direct the Accounts Bank in writing to create, and upon receipt of such written direction, the Accounts Bank shall create, additional accounts in any Loan Party’s name (as specified by the Borrower in writing) to facilitate the Borrower’s administration, operation and management of the Project (including, without limitation, creating accounts that hold Alternative Currencies to the extent permitted by the Financing Documents) so long as the intended purpose and use of any such account shall not be inconsistent with the terms of any Financing Document, and such accounts shall be subject to the terms hereof (including that they shall be pledged as Collateral hereunder). Without the consent of any Lender (as defined in the Working Capital Facility Agreement) or any other Secured Party, at the request of the Borrower, the parties hereto shall enter into an amendment to this Agreement solely to establish any Account described in this Section 2.01(c) (Establishment of Accounts) and to provide for deposits into and disbursements from any such account provided that such amendment shall not affect the priority of payments under Section 5.03(b). The Accounts Bank shall provide written notice to the Loan Parties and the Common Security Trustee of the account number and wire instructions for such newly established Account. (d) ~~The Indenture Trustee~~Wire instructions for each of the Accounts, the ~~Owner Trustee,~~ Senior Facility Agent and the ~~Securities Intermediary, the Account Holder and~~ Common Security Trustee are set forth on Exhibit A attached hereto (as such Exhibit may be updated from time to time by any such Person by written notice to each other ~~Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled~~party hereto).

Appears in 1 contract

Samples: Accounts Agreement (Sabine Pass Liquefaction, LLC)

Establishment of Accounts. ~~(i) The Servicer~~Borrower hereby confirms that, simultaneously with the execution of this Agreement, pursuant to the HSBC Account Control Agreement, it has established with HSBC Collection Bank, in the name of Borrower for the benefit of Agent, as secured party, the ~~Financial Parties~~“HSBC Collection Account”, ~~shall establish and maintain~~ which has been established as an non-interest-bearing deposit account. In addition, Borrower hereby confirms that, simultaneously with the execution of this Agreement, pursuant to the JP Account Control Agreement, it has established with JP Collection Bank, in the name of Borrower for the ~~Indenture Trustee an Eligible Deposit Account known~~ benefit of Agent, as ~~the Ally Auto Receivables Trust 2011-4 Collection Account (~~secured party, the “JP Collection Account”), which has been established as a non-interest bearing ~~an additional designation clearly indicating that~~ deposit account. The HSBC Collection Account and the JP Collection Account and the funds deposited therein ~~are held~~ shall serve as additional security for the ~~benefit of~~ Loan. Pursuant to the ~~Financial Parties. (ii) The Servicer~~HSBC Account Control Agreement, Borrower shall irrevocably instruct and authorize HSBC Collection Bank to disregard any and all orders for withdrawal from the ~~benefit of~~ HSBC Collection Account made by, or at the ~~Noteholders~~direction of, ~~shall establish and maintain~~ Borrower, Operating Company or Manager, if applicable, other than to transfer all amounts on deposit in the ~~name~~ HSBC Collection Account on a daily basis (except upon (a) the occurrence and during the continuance of an Event of Default and/or (b) the ~~Indenture Trustee an Eligible Deposit Account known as~~ occurrence of a Trigger Event and during the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit continuance of ~~the Noteholders. (i~~a Trigger Period) ~~Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice~~ to the ~~Indenture Trustee or other Account Holder, shall have~~ Borrower’s Account. Notwithstanding the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shallforegoing, to the extent ~~permitted by applicable laws~~that Observatory Tenant has deposited any Rent -108- payable under the Observatory Lease (excluding the Net Observatory Deck Revenue) for more than one (1) month in advance, ~~rules~~ that portion of such Rent which is payable with respect to future months shall be held in the HSBC Collection Account and ~~regulations~~shall be applied to shortfalls with respect to any Rents payable under the Observatory Lease (excluding the Net Observatory Deck Revenue) during future months (the “Advance Pay Rent”). Pursuant to the JP Account Control Agreement, ~~be invested~~Borrower shall irrevocably instruct and authorize JP Collection Bank to disregard any and all orders for withdrawal from the JP Collection Account made by, or at the ~~written~~ direction ~~of the Servicer~~of, ~~by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited~~ Borrower, Observatory Tenant or Manager, if applicable, other than to transfer all amounts on deposit in the ~~Reserve~~ JP Collection Account on the last Business Day of each month (except upon (a) the occurrence and during the continuance of an Event of Default and/or (b) the occurrence of a Trigger Event and during the continuance of a Trigger Period) to an account specified by Observatory Tenant. Upon the occurrence of an Event of Default or Trigger Event and during the continuance of an Event of Default or Trigger Period, as applicable, each of HSBC Collection Bank and JP Collection Bank shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made transfer all amounts on deposit in the ~~name of~~ HSBC Collection Account and the ~~Indenture Trustee~~ JP Collection Account to or ~~its nominee, and such investments shall not be sold or disposed of prior to their maturity~~as directed by Agent; provided, however, that ~~Notes held in~~ upon the ~~Reserve Account may be sold or disposed~~ occurrence of ~~prior to their maturity so long as (x)~~ a Trigger Event and during the ~~Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice~~ continuance of ~~such disposition to the Administrator and (z) such Notes are sold at~~ a ~~price equal to or greater than the unpaid principal balance thereof if, following such sale~~Trigger Period, the ~~amount~~ amounts on deposit in the ~~Reserve~~ HSBC Collection Account ~~would be less than~~ and the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated JP Collection Account shall be ~~treated as a “financial asset” within~~ transferred and applied in the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as manner set forth in Section ~~5.01(b)(ii)(E)~~ 6.5.6 hereof~~. (H) Except for~~ . Pursuant to the ~~claims~~ HSBC Account Control Agreement, provided no Event of Default or Trigger Period is continuing, HSBC Collection Bank shall transfer all collected and ~~interest~~ available funds on a daily basis, as determined by HSBC Collection Bank’s then current funds availability schedule, received in the HSBC Collection Account to the Borrower’s Account. Pursuant to the JP Account Control Agreement, provided no Event of Default or Trigger Period is continuing, JP Collection Bank shall transfer all collected and available funds on the last Business Day of each calendar month, as determined by JP Collection Bank’s then current funds availability schedule, received in the JP Collection Account to an account designated by Observatory Tenant. Borrower agrees that, prior to the payment in full of the ~~Indenture Trustee~~ Debt, the terms and conditions of the HSBC Account Control Agreement and JP Account Control Agreement shall not be amended or modified without the prior written consent of Agent (which consent Agent may grant or withhold in its reasonable discretion). In recognition of Agent’s and Lenders’ security interest in the ~~Designated Accounts,~~ funds deposited into the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer HSBC Collection Account and the ~~Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements~~JP Collection Account, ~~confirmations and other correspondence concerning~~ Borrower shall identify the ~~Designated Accounts and/or any Designated~~ HSBC Collection Account ~~Property simultaneously to each of the Servicer~~ and the ~~Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The~~ JP Collection Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the ~~consent~~ name of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all rightAgent, ~~title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings)~~as secured party. Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, andAgent hereby agrees that, in connection with ~~any direction~~ Agent’s determination that a Trigger Event exists, if Agent used a lower NOI to calculate the applicable Debt Yield than the NOI which was calculated by Borrower, Agent shall review the same with Borrower and/or its representatives, including Agent’s adjustment (if any) to Gross Revenues and/or Operating Expenses, as applicable, to provide to Borrower and/or its representatives the basis for and details surrounding such determination (provided, however, that the duration of such review and the provision of such basis for and details surrounding Agent’s determination shall be reasonably determined by Agent and the final determination of the Debt Yield shall be unilaterally made by Agent). Agent shall establish and hold the following accounts (each, an “Account” and, collectively, the “Accounts” and, together with the HSBC Collection Account and the JP Collection Account, the “Collateral Accounts”) with the Cash Management Bank, which shall each be an Eligible Account to which certain funds shall be allocated and from which disbursements shall be made pursuant to the terms of this Agreement and the Cash Management Agreement: (a) an Account ~~Holder to make any such investment or sale~~into which the HSBC Collection Bank and JP Collection Bank shall, if ~~requested~~ directed by Agent, upon the ~~Indenture Trustee~~occurrence and during the continuance of an Event of Default and upon the occurrence of a Trigger Event and during the continuance of a Trigger Period, deposit all sums on deposit in the ~~Servicer shall deliver to~~ HSBC Collection Account and the ~~Indenture Trustee~~ JP Collection Account (the “Deposit Account”); (b) an ~~Opinion~~ Account for the retention of ~~Counsel, acceptable to~~ Account Collateral in respect of Debt Service payments due under the ~~Indenture Trustee, to such effect.~~Loan (the “Debt Service Reserve Account”); (c) ~~[Reserved].~~an Account for the retention of Account Collateral in respect of Taxes for the Property (the “Tax Reserve Account”); (d) ~~The Indenture Trustee,~~ an Account for the ~~Owner Trustee,~~ retention of Account Collateral in respect of insurance premiums for the ~~Securities Intermediary,~~ Property (the “Insurance Reserve Account”); (e) an Account ~~Holder and each other Eligible Institution with whom a Designated~~ for the retention of Account ~~is maintained waives any right~~ Collateral in respect of ~~set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled~~Lease Termination Fees (the “Lease Termination Fee Reserve Account”); (f) an Account for the retention of Net Proceeds (the “Proceeds Reserve Account”); and (g) an Account for the retention of Excess Cash Flow (the “Excess Cash Flow Account”).

Appears in 1 contract

Samples: Loan Agreement

Establishment of Accounts. (ia) The Servicer, ~~for the benefit~~ on behalf of the ~~Financial Parties~~Owner Trustee and the Indenture Trustee, shall establish ~~and maintain~~ the Collection Account in the name of the Indenture Trustee for the benefit of the Securityholders. The Collection Account shall be a segregated trust account initially established with the Indenture Trustee and maintained with the Indenture Trustee as long as (i) the deposits of the Indenture Trustee have the Required Deposit Rating or (ii) the Collection Account is maintained in a segregated trust account in the trust department of the Indenture Trustee; PROVIDED, HOWEVER, that all amounts held in the Collection Account shall, to the extent permitted by applicable laws, rules and regulations and as directed by the Servicer, be invested by the Indenture Trustee in Eligible Investments; otherwise, such amounts shall be maintained in cash. All such Eligible Investments shall mature not later than the Business Day preceding the next Distribution Date, in such manner that such amounts invested shall be available to make the required distributions on the Distribution Date. Should the short-term unsecured debt obligations of the Indenture Trustee no longer have the Required Deposit Rating then, unless the Collection Account is maintained in segregated trust accounts in the trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's assistance as necessary and within ten Business Days of receipt of notice from the Indenture Trustee that the Indenture Trustee no longer has the Required Deposit Rating, cause the Collection Account (i) to be moved to segregated trust accounts in a bank or trust company, the short-term unsecured debt obligations of which shall have the Required Deposit Rating, or (ii) to be moved to the trust department of the Indenture Trustee. (b) Earnings on investment of funds in the Collection Account shall be paid to the Servicer on each Distribution Date as servicing compensation, and any losses and investment expenses shall be charged against the funds on deposit in the Collection Account. (c) Subject to the foregoing, the Servicer, on behalf of the Owner Trustee and the Indenture Trustee, shall establish and maintain the Collection Account as an Eligible Deposit Account ~~known as~~ in the ~~Ally Auto Receivables Trust 2011-4 Collection Account (~~name of and under the ~~“Collection Account”)~~exclusive control of the Indenture Trustee, bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties.~~ Securityholders. The Indenture Trustee will be obligated to transfer all amounts remaining on deposit in the Collection Account on the Distribution Date on which the Notes of all Classes have been paid in full (iior substantially all of the Trust Estate is otherwise released from the lien of the Indenture) ~~The Servicer,~~ to another Eligible Deposit Account established pursuant to the Trust Agreement for the benefit of the ~~Noteholders~~Certificateholders (the "Trust Collection Account"), ~~shall establish~~ and ~~maintain~~ to take all necessary or appropriate actions to transfer all of its right, title and interest in the ~~name~~ Collection Account, all funds or investments held therein and all proceeds thereof, whether or not on behalf of the ~~Indenture~~ Securityholders, to the Owner Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Noteholders. (i) Each of~~ Certificateholders, subject to the ~~Designated Accounts shall be initially established with~~ limitations set forth in the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to amounts held for payment to Noteholders that do not promptly deliver a Note for payment on such Distribution Date. After the ~~Designated Accounts only~~transfer to the Trust Collection Account described in the immediately preceding sentence, references in this Agreement to "Collection Account" shall be deemed to be ~~moved~~ references to the ~~corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the~~ "Trust Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities IntermediaryAccount.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations." (iid) With respect to the ~~Designated~~ Collection Account ~~Property~~and all property held therein, the ~~Account Holder~~ Owner Trustee agrees, by its acceptance ~~hereof~~hereof that, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to on the ~~Designated Accounts shall be registered~~ terms and conditions set forth in the ~~name~~ Indenture, for so long as Notes of any Class remain outstanding, the ~~Securities Intermediary~~Indenture Trustee shall possess all right, ~~indorsed~~ title and interest therein (excluding interest or investment income thereon payable to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the ~~Depositor~~Seller, ~~payable to~~ as the ~~order of~~ case may be), and the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account Accounts shall be ~~treated as a “financial asset” within~~ under the ~~meaning~~ sole dominion and control of ~~Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from~~ the Indenture Trustee ~~directing transfer or redemption of any Financial Asset relating to~~ for the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws benefit of the ~~State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction~~ Noteholders and the ~~Designated Accounts (as well~~ Certificateholders, as the ~~Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into~~case may be, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in ~~Section 5.01(b)(ii)(E) hereof. (H) Except for~~ the ~~claims~~ Indenture. The parties hereto agree that the Issuer, the Owner Trustee and ~~interest~~ the Holders of the ~~Indenture Trustee~~ Certificates have no right, title or interest in the ~~Designated Accounts,~~ Reserve Account or any amounts on deposit therein at any time. The parties hereto agree that the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) , to instruct the Indenture Trustee to make withdrawals and payments from the ~~Designated Accounts~~ Collection Account for the purpose of permitting the ~~Servicer~~ Servicer, Indenture Trustee or the Owner Trustee to carry out its respective duties hereunder or ~~permitting~~ under the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the ~~proceeds of such sale~~Trust Agreement, ~~in either~~ as the case ~~without any further action by any Person, and, in connection with any direction to~~ may be. Notwithstanding the ~~Account Holder to make any such investment or sale, if requested by the Indenture Trustee~~foregoing, the Servicer shall ~~deliver~~ be entitled to withhold, or to be reimbursed from amounts otherwise payable into or on deposit in the ~~Indenture Trustee an Opinion of Counsel~~Collection Account, ~~acceptable~~ as the case may be, amounts previously deposited in the Collection Account but later determined to ~~the Indenture Trustee, to such effect~~have resulted from mistaken deposits or posting. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Nissan Auto Receivables Corp /De)

Establishment of Accounts. (ia) ~~The Servicer~~During the term of this Agreement, the Depository Institution agrees to accept deposits from, and establish Accounts for, Customers in the amounts remitted to the Depository Institution by Broker, as agent for Customers; provided that no Sweep Deposit Account shall be established at the Depository Institution if after giving effect to the deposit the aggregate amount of funds on deposit in all Sweep Deposit Accounts established for that category of Account with the Depository Institution hereunder would exceed the amount specified from time to time by Depository Institution by written notice to Broker (it being understood that once a Customer establishes a Sweep Deposit Account with the Depository Institution, the Depository Institution will accept all additional funds remitted to the Depository Institution by Broker, as agent for the Customer, for ~~the benefit~~ deposit to such Account). Each of the ~~Financial Parties, shall establish and maintain~~ customer NOW Accounts will be linked to an MMDA in the name of the ~~Indenture Trustee an Eligible~~ same customer, and the linked deposit accounts operated together as subaccounts that comprise a single Sweep Deposit Account ~~known~~ made available to Broker’s eligible customers as a cash sweep option for holding available cash balances in the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Partiescustomer’s brokerage account. (iib) ~~The Servicer~~Broker, as agent for the ~~benefit of~~ Customer, will remit to the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. Depository Institution (i) ~~Each~~ the amount of ~~the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice~~ a Customer’s initial deposit to ~~the Indenture Trustee or other~~ its Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at the amount of any subsequent deposits by such ~~later date as shall be otherwise permitted by~~ Customer to its Account. Broker may notify the ~~Rating Agencies. Investments in Eligible Investments shall be made~~ Depository Institution of any initial deposits and subsequent deposits to Accounts in the ~~name~~ form of a Notice of Net Withdrawal or Net Deposit (“Notice of Net W/D”) for the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Sweep Deposit Accounts. ~~The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to~~ By the ~~Designated Accounts shall be registered in the name~~ Depository Institution’s acceptance of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entitysuch notice, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York Depository Institution shall be deemed to have made the representations contained thereon. Each Business Day, the Depository Institution shall transfer to Broker the net amount of all withdrawals less new deposits specified in the Notice of Net Withdrawal for Sweep Deposit Accounts, and Broker shall transfer to Depository Institution the net amount of all deposits less withdrawals specified in the Notice of Net Deposit for Sweep Deposit Accounts with actual wire transfer of funds (or such other method of transfer as may be ~~the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed~~ mutually agreed upon by the ~~laws~~ parties). The Depository Institution shall debit or credit, as appropriate, the Omnibus Accounts with the amounts thereto as of the ~~State~~ date of ~~New York. (G) The Securities Intermediary has not entered into, and until~~ receipt by the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) Depository Institution from Broker of the ~~New York UCC)~~ funds in respect of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectdeposit. (c) ~~[Reserved]~~No minimum initial deposit will be required to establish an Account. If withdrawals from a Customer’s Account cause the deposit balance therein to be reduced to zero, the Depository Institution shall nevertheless continue to maintain the Account unless Broker notifies the Depository Institution that the Customer has instructed Broker to close the Account. (d) ~~The Indenture Trustee~~Depository Institution will monitor each Customer’s MMDA for conformity with the monthly transaction limits applicable to MMDA Accounts under Regulation D (12 C.F.R. § 204), use a commercially available computer algorithm for determining a portion of the ~~Owner Trustee~~Customer balance to keep in the NOW Account and periodically rebalance this amount to optimize the balances in the two linked customer Deposit Accounts, and transfer the ~~Securities Intermediary~~balances in those Customer MMDA Accounts exceeding transaction limits to the associated customer NOW Accounts for the relevant month in a manner consistent with interpretations of the Federal Reserve Board (and transfer back to the associated MMDA account for the commencement of the next month), and notify the ~~Account Holder~~ Broker of the aggregate balances of the Accounts that are in NOW Accounts and ~~each other Eligible~~ the aggregate balances of Accounts that are in MMDA Accounts, and the Depository Institution ~~with whom~~ shall calculate, report and maintain required reserves. For purposes of this Section 2, “month” or “monthly” may mean a ~~Designated Account is maintained waives any right of set-off, counterclaim, security interest~~ calendar month or ~~bankers’ lien~~ a monthly statement cycle (which might not correspond to ~~which it might otherwise be entitled~~a calendar month) as appropriate to conform to Regulation D requirements.

Appears in 1 contract

Samples: Brokerage and Servicing Agreement (E Trade Financial Corp)

Establishment of Accounts. (a) On the Closing Date, Borrower shall, or shall cause Mortgage Borrower to, (i) ~~The Servicer~~establish one or more accounts (individually and collectively, the “Property Account”) with Property Account Bank into which Borrower shall deposit, or cause to be deposited, all Gross Income From Operations, and (ii) execute an agreement with Mortgage Lender and the Property Account Bank providing for the ~~benefit~~ control of the ~~Financial Parties~~Property Account substantially in the form of Exhibit A attached herewith (the “Property Account Agreement”) each in accordance with the Mortgage Loan Documents. (b) In addition, Borrower shall cause Mortgage Borrower to establish accounts with the Lockbox Bank (the “Lockbox Account”), into which shall be deposited all sums on deposit in the Property Account, in accordance with the Lockbox Account Agreement. The Lockbox Bank shall establish the following Accounts (which may be book entry sub-accounts) into which Gross Income From Operations shall be deposited or allocated, in accordance with the Mortgage Loan Documents: (i) An account with Lockbox Bank into which shall deposited the Monthly Tax Deposit (the “Tax Account”); (ii) An account with Lockbox Bank into which shall be deposited the Monthly Insurance Premium Deposit (the “Insurance Premium Account”); (iii) An account with Lockbox Bank into which shall be deposited the monthly debt service payment amount payable under and ~~maintain~~ in accordance with the Mortgage Loan Documents (the “Mortgage Loan Debt Service Account”); (iv) An account with Lockbox Bank into which shall be deposited the Replacement Reserve Deposit (the “Replacement Reserve Account”); (v) An account with Lockbox Bank into which shall be deposited the Required Repair Fund (the “Required Repair Account”); (vi) Intentionally Omitted; (vii) An account with Lockbox Bank into which shall be deposited the Monthly Ground Rent Deposit (the “Ground Rent Account”); (viii) An account with Lockbox Bank into which the Approved Expenses shall be deposited (the “Borrower Expense Account”); (ix) An account with Lockbox Bank into which the Extraordinary Expenses shall be deposited (the “Extraordinary Expense Account”); (x) An account with Lockbox Bank into which shall be deposited the Monthly Mezzanine Debt Service Payment Amount (the “Mezzanine Loan Account”); and (xi) An account with Lockbox Bank into which Excess Cash Flow shall be deposited (the “Excess Cash Flow Account”). All of the foregoing Accounts shall be in the name of the ~~Indenture Trustee an Eligible Deposit Account known as~~ Mortgage Lender and Servicer. If at any time (other than the ~~Ally Auto Receivables Trust 2011-4 Collection Account (~~period immediately following the ~~“Collection Account”~~Closing Date until the Accounts are established), ~~bearing an additional designation clearly indicating that~~ for any reason or no reason, Mortgage Lender waives the ~~funds deposited therein are held~~ requirement for all or any part of the foregoing cash management system, or the Mortgage Loan is satisfied, Borrower shall immediately be obligated to establish and maintain a cash management system as provided in this Article III for the benefit of ~~the Financial Parties~~Lender. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Loan Agreement (Wyndham International Inc)

Establishment of Accounts. (i) The ~~Servicer~~Administrator, for the benefit of the Financial Parties, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 SN2 Collection Account (the “AART Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Financial Parties. (ii) The ~~Servicer~~Administrator, for the benefit of the Noteholders, shall establish and maintain in the name of the AART Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust ~~2011~~2014-4 SN2 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held in a segregated account for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the AART Indenture Trustee, who shall be the initial Account Holder. At any time after the Closing Date, the ~~Servicer~~Administrator, upon thirty (30) ~~days’~~ days written notice to ~~the~~ AART Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the ~~Servicer~~ Administrator in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated ~~Account,~~ Account may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in a segregated account in its corporate trust department). Should the short-term ~~unsecured~~ debt obligations of an Account Holder no longer have the Required Deposit Rating, then the ~~Servicer~~ Administrator shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the AART Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution with the Required Deposit Rating or (B) with respect to the Designated Accounts only, to be moved to a segregated account in the corporate trust department of the Account Holder. All amounts held in Designated Accounts ~~(including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the ~~Servicer~~Administrator, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the ~~Servicer~~ Administrator that any such investment is authorized by this Section 5.01. ~~Funds deposited~~ In the absence of such prior written instruction from the Administrator to such Account Holder, the Account Holder shall invest any uninvested funds in ~~the Reserve Account shall be invested in Eligible Investments which mature~~ “BofA Government Plus Reserved (i4151) ~~prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies~~Capital Class”. Investments in Eligible Investments shall be made in the name of the AART Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer~~Administrator. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the AART Indenture Trustee, the ~~Servicer~~ Administrator shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor, payable to the order of the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor or specially indorsed to the Issuing Entity, the ~~Servicer~~ Administrator or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the AART Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the ~~Servicer~~Administrator, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts ~~and/or~~ or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the ~~Servicer~~Administrator, the Account Holder or the AART Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the AART Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any ~~Lien, encumbrance or adverse claim~~ Lien (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the AART Indenture Trustee, the ~~Servicer~~ Administrator and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts ~~and/or~~ or any Designated Account Property simultaneously to each of the ~~Servicer~~ Administrator and the AART Indenture Trustee, at the addresses set forth in Part III of Appendix B A to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The ~~Servicer~~ Administrator shall have the power, revocable by the AART Indenture Trustee (or by the AART Owner Trustee with the consent of the AART Indenture Trustee) to instruct the AART Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the ~~Servicer~~ Administrator or the AART Owner Trustee to carry out its respective duties hereunder or permitting the AART Indenture Trustee to carry out its duties under the AART Indenture. (iv) The AART Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the AART Indenture, the Designated Accounts shall be under the exclusive dominion and control of the AART Indenture Trustee for the benefit of the Securityholders and the AART Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The ~~Servicer~~ Administrator shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the AART Indenture Trustee, the ~~Servicer~~ Administrator shall deliver to the AART Indenture Trustee an Opinion of Counsel, acceptable to the AART Indenture Trustee, to such effect. (c) ~~[Reserved]~~Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account, if any, shall be under the sole dominion and control of the AART Owner Trustee for the benefit of the Certificateholders. If, at any time, such Certificate Distribution Account ceases to be an Eligible Deposit Account, the AART Owner Trustee (or the Administrator on behalf of the AART Owner Trustee, if such Certificate Distribution Account is not then held by the AART Owner Trustee or an Affiliate thereof) shall within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall transfer any cash and any investments to such new Certificate Distribution Account. (d) The AART Indenture Trustee, the AART Owner Trustee, the Securities Intermediary, ~~the~~ each Account Holder and each other Eligible Institution with whom a Designated Account or the Certificate Distribution Account, if any, is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Administration Agreement (Ally Auto Assets LLC)

Establishment of Accounts. (ia) ~~The Servicer, for the benefit of the Financial Parties, shall establish and maintain~~ Each FP Account will be governed by (x) an agreement substantially in the ~~name~~ form of Exhibit A-1 with the ~~Indenture Trustee~~ Intermediary of each such account, (y) in the case of accounts established by the Collateral Agent, an ~~Eligible Deposit~~ agreement substantially in the form of Exhibit A-2 or (z) a global custody agreement with respect to the FSA PAL Brussels Cash Account ~~known as~~ and the ~~Ally Auto Receivables Trust 2011-4 Collection~~ FSA PAL Brussels Collateral Account (~~the~~ each such agreement as amended, supplemented or otherwise modified, a “~~Collection Account~~Securities Account Control Agreement”), ~~bearing~~ which will require the relevant Intermediary to segregate and hold all assets received by it in an ~~additional designation clearly indicating that~~ FP Account. The maintenance of such FP Account will be governed by the ~~funds deposited therein are held for the benefit~~ law of the ~~Financial Parties~~jurisdiction set forth in such Securities Account Control Agreement. (iib) ~~The Servicer~~Prior to the Closing Date, ~~for~~ FSAM shall cause the ~~benefit of~~ Collateral Agent to establish the ~~Noteholders~~Custody Account, ~~shall establish~~ the Collateral Agent Cash Account and ~~maintain in~~ the ~~name of the Indenture Trustee an Eligible Deposit~~ Collateral Agent Custodial Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time and after the Closing Date, the ~~Servicer~~Collateral Agent may, ~~upon thirty (30) days’ written notice to~~ and at the ~~Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all~~ direction of the ~~Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained~~ Secured Party Representative will, establish with an Intermediary one or more additional accounts pursuant to this Article X, each of which will be non-interest bearing segregated account and may include any number of sub-accounts, which may be held by sub-custodians for convenience in administering the Collateral (including sub-accounts for different currencies and for different assets). Each such account will be established with an Intermediary and maintained pursuant to a Securities Account ~~Holder if~~ Control Agreement. Promptly following the ~~short-term debt obligations~~ Closing Date and in no event later than 10 Business Days thereafter, FSA PAL shall cause the establishment of ~~such~~ the FSA PAL Brussels Cash Account ~~Holder cease to have~~ and the ~~Required Deposit Rating (except that any Designated~~ FSA PAL Brussels Collateral Account, each of which will be non-interest bearing segregated account and may include any number of sub-accounts, which may be ~~maintained~~ held by sub-custodians for convenience in administering the Collateral (including sub-accounts for different currencies and for different assets). Each such account will be established with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) Intermediary with respect to the ~~Designated Accounts only~~FSA PAL Belgian Collateral and maintained pursuant to a Securities Account Control Agreement. The establishment of the FSA PAL Brussels Cash Account and the FSA PAL Brussels Collateral Account, ~~to be moved~~ and the grant of a security interest in the related property as FSA PAL Belgian Collateral pursuant to the ~~corporate trust department~~ FSAM Belgian Pledge Agreement, shall be in substitution for the FSA PAL Cash Account and the FSA PAL Collateral Account, and the grant of a security interest in the ~~Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account~~ related property as FSA PAL Collateral pursuant to Section ~~5.02~~2.1(c). (c) Each Existing Account has been established as a segregated account with an Intermediary. The FSAM Cash Account and FSAM Collateral Account are maintained pursuant to a securities account control agreement dated as of July 31, 2003 (the “Existing Control Agreement”), among BNY Mellon, FSAM and FSA that among other things evidences FSA’s “Control” with respect to the Security Entitlements in the FSAM Cash Account and FSAM Collateral Account, respectively. FSAM and FSA shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) on or prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nomineeClosing Date, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If enter into a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With Account Control Agreement with respect to the ~~Designated~~ FSAM Collateral Account ~~Property,~~ and the FSAM Cash Account ~~Holder agrees, by its acceptance hereof, that: (A) Any Designated~~ that will supersede the Existing Control Agreement. Each other Existing Account ~~Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets~~ will be ~~credited. (B) All securities or other property underlying any Financial Assets credited~~ subject to a Securities Account Control Agreement with the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement relevant Grantor. Each Existing Account will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent maintained by the ~~Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of~~ relevant Intermediary in the State of New ~~York, regardless of any provision in any other agreement. For purposes~~ York for the benefit of the ~~UCC~~Secured Parties. Existing Accounts may include sub-accounts for different currencies and for different assets. (d) The relevant Grantor shall cause the Intermediary (or in the case of the FSA Capital Markets Cayman Notes, ~~New York shall~~ the Collateral Agent) to hold any Certificated Securities and Instruments that are in physical form in accordance with its standard custodial procedures. Any custodian for such Certificated Securities and Instruments will not be ~~deemed to~~ an Affiliate of Dexia and must satisfy the eligibility requirements set forth in Section 6.3. Dexia CSA Collateral will be ~~the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of~~ held through one or more Intermediaries outside the State of New York. (Ge) ~~The Securities Intermediary has not entered into~~FSAM (or, ~~and until~~ following a Transition Date, the ~~termination~~ FSAM Successor) shall take all commercially reasonable efforts to cause the transfer of ~~this Agreement will not enter into, any agreement with any~~ all Collections from each FP Account (other ~~Person relating~~ than the Dexia Collateral Account) at least daily to the ~~Designated Accounts and/or~~ FSAM Cash Account or the Collateral Agent Cash Account, as applicable. (f) FSAM (or, following a Transition Date, the FSAM Successor) will manage the FSAM Assets in accordance with the ALM Procedures, collect any ~~Financial~~ proceeds of the FSAM Assets ~~or other property credited thereto~~ and apply Available Funds consistent with the Priority of Payments. Any proceeds received in connection with the sale of FSAM Assets will be applied pursuant to ~~which it has agreed~~ the Priority of Payments or invested solely in Permitted Investments. (g) Any cash on deposit in any Account shall be invested at the direction of the Administrator in Permitted Investments. (h) Upon establishment of the FSA PAL Brussels Cash Account and FSA PAL Brussels Collateral Account (the “Brussels Account Establishment”), FSA PAL or the Administrator will (x) immediately notify FSA (with a copy to ~~comply with entitlement orders (as defined in Section 8-102(a)(8~~the Collateral Agent) of the ~~New York UCC)~~ establishment of such ~~other Person~~ accounts and (y) within two Business Days of the Brussels Account Establishment transfer all property from the FSA PAL Cash Account and FSA PAL Collateral Account, respectively, to such accounts (the “FSA PAL Accounts Transfer”). Upon the occurrence of a Brussels Account Failure, FSA will have the right to deliver a notice of sole control pursuant to the Securities ~~Intermediary has not entered into~~Account Control Agreement related to the FSA PAL Cash Account and FSA PAL Collateral Account and following delivery of such notice, to cause the FSA PAL Brussels Cash Account and ~~until~~ FSA PAL Brussels Collateral Account to be established and/or cause the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies transfer of all ~~statements~~property from the FSA PAL Cash Account and FSA PAL Collateral Account, ~~confirmations and other correspondence concerning~~ respectively, to such accounts. Following the ~~Designated Accounts and/or any Designated Account Property simultaneously to~~ transfer of all property from each of the ~~Servicer~~ FSA PAL Cash Account and the ~~Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated~~ FSA PAL Collateral Account to ~~which such item originated~~ the FSA PAL Brussels Cash Account and ~~shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power~~FSA PAL Brussels Collateral Account, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenturerespectively, the ~~Designated Accounts shall~~ FSA PAL Cash Account and FSA PAL Collateral Account will be ~~under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~closed. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Pledge and Administration Agreement (Assured Guaranty LTD)

Establishment of Accounts. (a) The Trustee, on behalf of the Trust, shall establish the Collection Account and the Security Account as segregated trust accounts in the name of the Trust for the benefit of Securityholders and the Security Insurer with the Corporate Trust Office of the Trustee. The Servicer shall direct the Trustee to invest the amounts in the Collection Account and the Security Account in Eligible Investments that, with respect to the Collection Account, mature not later than the Business Day prior to the next succeeding Determination Date or, with respect to the Security Account, mature not later than the next succeeding Deposit Date, and to hold such Eligible Investments to maturity. The Collection Account and the Security Account shall always be maintained as Eligible Accounts. The Trustee may trade with itself or an affiliate in the purchase or sale of Eligible Investments. (i) The ~~Servicer~~Seller shall establish and maintain the Reserve Account and the Yield Maintenance Account in the name of the Trustee, each as an Eligible Account for the benefit of the ~~Financial Parties~~Trust, the Securityholders and the Security Insurer. The Reserve Account and the Yield Maintenance Account shall ~~establish and maintain in the name~~ not be property of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial PartiesTrust. (ii) ~~The Servicer, for the benefit of the Noteholders, shall establish and maintain~~ Funds on deposit in the ~~name of the Indenture Trustee an Eligible Deposit~~ Reserve Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be ~~initially established with~~ invested by the ~~Indenture Trustee. At any time after the Closing Date~~Trustee in Eligible Investments, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated in each case selected by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if anyby a written direction, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall ~~constitute certification by the Servicer~~ certify that any such investment is authorized by this ~~Section 5.01~~Section; PROVIDED, HOWEVER, the Trustee shall not be liable for any loss arising from such investment in Eligible Investments (other than as Obligor under any Eligible Investment). All such Eligible Investments shall be held by the Trustee for the benefit of the beneficiaries of the Reserve Account and the Yield Maintenance Account; PROVIDED that on each Distribution Date all interest and other investment income (net of investment losses and expenses) on funds on deposit in the Yield Maintenance Account shall be withdrawn from the Yield Maintenance Account at the direction of the Servicer and shall be paid to the Seller; all interest and other investment income (net of investment losses and expenses) on funds on deposit in the Reserve Account shall be deposited to the Reserve Account. Funds on deposit in the Reserve Account and the Yield Maintenance Account shall be invested in Eligible Investments that will mature so that such funds will be available at the close of business on the related Deposit Date. Funds deposited in the Reserve Account ~~shall be invested in~~ and the Yield Maintenance Account on the day which immediately precedes a Distribution Date upon the maturity of any Eligible Investments ~~which mature~~ are not required to be (ibut may be) ~~prior to~~ invested overnight in accordance with the ~~next Distribution Date or (ii) at such later date as~~ investment provisions contained herein. The Seller shall ~~be otherwise permitted by~~ treat the ~~Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee,~~ funds and ~~such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held~~ other assets in the Reserve Account ~~may be sold or disposed of prior to their maturity so long~~ and the Yield Maintenance Account as its own for federal, state and local income tax and franchise tax purposes and shall report on its tax returns all income and gain from the Reserve Account and the Yield Maintenance Account. (xiii) ~~the Servicer directs the Indenture~~ The Trustee ~~to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition~~ agrees as follows with respect to the ~~Administrator~~ Eligible Investments, and ~~(z) such Notes are sold at a price equal~~ the proceeds thereof, held from time to ~~or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit~~ time in the Reserve Account ~~would be less than~~ and the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, thatYield Maintenance Account: (A) ~~Any Designated Account Property~~ any Eligible Investment that is held in deposit accounts shall be ~~held solely in Eligible Deposit Accounts. The Designated Accounts are accounts~~ subject to ~~which Financial Assets will be credited.~~the exclusive custody and control of the Trustee, and the Trustee shall have sole signature authority with respect thereto; (B) ~~All securities or other property underlying~~ any ~~Financial Assets credited to~~ Eligible Investment that constitutes Physical Property (as defined in the ~~Designated Accounts~~ definition of Delivery) shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the ~~Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account.~~ Trustee in accordance with paragraph (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9a) of the ~~New York UCC. (E) If at any time the Securities Intermediary~~ definition of "Delivery" and shall ~~receive any order from the Indenture Trustee directing transfer~~ be held, pending maturity or ~~redemption of any Financial Asset relating to the Designated Accounts~~disposition, ~~the Securities Intermediary shall comply with such order without further consent~~ solely by the ~~Issuing Entity, the Servicer, the Depositor~~ Trustee or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts a financial intermediary (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as such term is defined in Section 8-~~102(a)(8~~313 (4) of the ~~New York~~ UCC) acting solely for the Trustee; (C) any Eligible Investment that is a book-entry security held through the Federal Reserve System pursuant to federal book-entry regulations shall be delivered in accordance with paragraph (b) of the definition of "Delivery" and shall be maintained by the Trustee, pending maturity or disposition, through continued book entry registration of such ~~other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into,~~ Eligible Investment as described in such paragraph; and (D) any ~~agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation~~ Eligible Investment that is an "uncertificated security" under Article 8 of the ~~Securities Intermediary~~ UCC and that is not governed by clause (C) above shall be delivered to ~~comply~~ the Trustee in accordance with ~~entitlement orders as set forth in Section 5.01(b)(ii)(E~~paragraph (c) ~~hereof~~of the definition of "Delivery" and shall be maintained by the Trustee, pending maturity or disposition, through continued registration of the Trustee's (or its nominee's) ownership of such security directly or through one or more financial intermediaries. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iiiiv) The Servicer shall have the power, revocable by the ~~Indenture Trustee (or by the Owner Trustee with the consent of the Indenture~~ Trustee) , to instruct the ~~Indenture~~ Trustee to make withdrawals and payments from the ~~Designated Accounts~~ Reserve Account and the Yield Maintenance Account for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all making distributions of funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such ~~account shall continue to be perfected~~ Accounts in ~~such investment or~~ accordance with the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectprovisions hereof. (c) ~~[Reserved]. (d) The Indenture~~ In the event of any change of law regarding matters relating to the perfection of security interests in any Account, the amounts or any Eligible Investments held therein, the Seller shall cause to be furnished to the Trustee, the ~~Owner Trustee~~Security Insurer and each Rating Agency, an opinion of Counsel addressing such matters and if necessary, the ~~Securities Intermediary,~~ Seller shall cooperate with the ~~Account Holder and each other Eligible Institution~~ Trustee in taking all actions necessary to comply with ~~whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled~~the change in law.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chevy Chase Bank FSB)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2007-JPM Owner Trust ~~2011-4~~ Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2007-JPM Owner Trust ~~2011-4~~ Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) Pursuant to the Trust Agreement, the Servicer, for the benefit of the Certificateholders, shall establish and maintain in the name of the Trust an Eligible Deposit Account known as the Navistar Financial 2007-JPM Owner Trust Certificate Distribution Account (the “Certificate Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. (iv) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Navistar Financial 2007-JPM Owner Trust Reserve Account (the “Reserve Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture~~ Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with ~~an Account Holder if~~ the ~~short-term debt obligations of such Account Holder cease to have the Required Deposit Rating~~ Indenture Trustee so long as (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should A) the short-term unsecured debt obligations of ~~an Account Holder no longer~~ the Indenture Trustee have the Required Deposit ~~Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each~~ Rating ~~Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution~~ or (B) ~~with respect to~~ each of the Designated Accounts ~~only, to be moved to the corporate trust department of the Account Holder~~qualifies as an Eligible Deposit Account. All amounts held in ~~Designated Accounts~~ such accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section ~~5.02~~2.11) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such bank or trust company in Eligible Investments; provided, that funds in the Collection Account ~~Holder~~ in an amount not in excess of 20% of the Aggregate Receivables Balance as of the preceding Accounting Date may be invested in investments which have a rating from S&P of “A-1” rather than “A-1+,” if such investments otherwise constitute Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section ~~5.01~~2.02. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature ~~(i)~~ prior to the next Distribution ~~Date or (ii) at~~ Date; provided, that such investments may mature on a later date ~~as shall be otherwise permitted by~~ if the ~~Rating Agencies~~Agent consents. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided, however, that Notes held in~~ . Should the ~~Reserve Account may be sold or disposed~~ short-term unsecured debt obligations of ~~prior to their maturity so long as (x) the Servicer directs~~ the Indenture Trustee (or any other bank or trust company with which the Designated Accounts are maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to ~~make such sale or disposition~~exceed 30 calendar days, ~~(y)~~ without consent of the Agent with respect thereto), with the Indenture ~~Trustee gives reasonable prior notice of such disposition~~ Trustee’s assistance as necessary, cause the Designated Accounts (A) to ~~the Administrator and (z) such Notes are sold at~~ be moved to a ~~price equal to~~ bank or ~~greater than the unpaid principal balance thereof if, following such sale~~trust company, the ~~amount on deposit in~~ short-term unsecured debt obligations of which shall have the ~~Reserve Account would~~ Required Deposit Rating, or (B) to be ~~less than the Specified Reserve Account Balance~~moved to an Eligible Deposit Account. Investment Earnings on funds deposited in the Designated Accounts shall be ~~payable to~~ deposited into the ~~Servicer~~Collection Account for distribution in accordance with Section 8.2 of the Indenture. ~~Each Account Holder~~ The Indenture Trustee or the other Person holding a the Designated ~~Account~~ Accounts as provided in this Section ~~5.01(b)(i),~~ 2.02(b)(i) shall be a the “Securities Intermediary.” If a the Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section ~~5.01 and an Opinion of Counsel that such Person can perform such obligations~~2.02. (ii) With respect to the Designated Account Property, the ~~Account Holder~~ Securities Intermediary agrees, by its acceptance hereof, that: (A) ~~Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts.~~ The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~Seller, payable to the order of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller or specially ~~indorsed~~ endorsed to the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited ~~upon receipt of such property~~ to the appropriate Designated Account. (D) Each item of property (whether ~~investments,~~ investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the ~~Issuing Entity~~Issuer, the Servicer, the ~~Depositor~~ Seller or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the ~~Security~~ Securities Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other ~~Person~~ person relating to the Designated Accounts and/or any Financial Assets ~~or other property~~ credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other ~~Person~~ person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the ~~Issuing Entity~~Issuer, the ~~Depositor~~Seller, the Servicer, the ~~Account Holder~~ Indenture Trustee or the ~~Indenture Trustee~~ Swap Counterparty purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings2.02(b)(ii). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Servicing Agreement (Navistar Financial Corp)

Establishment of Accounts. (a) The Lockbox Account. ------------------- (i) The ~~Servicer~~Seller has established with a Lockbox Bank each Lockbox Account, ~~for~~ into which the ~~benefit~~ Servicer shall deposit from time to time all monies, instruments and other property received by it as Proceeds of the ~~Financial Parties~~Transferred Receivables. The Seller agrees that prior to a Termination Event the Operating Agent, and upon the occurrence and during the continuation of a Termination Event the Collateral Agent, shall ~~establish~~ have exclusive dominion and ~~maintain~~ control of each Lockbox Account and all monies, instruments and other property from time to time in ~~the name of the Indenture Trustee an Eligible Deposit Account known~~ each Lockbox Account. The Seller will not make or cause to be made, or have any ability to make or cause to be made any withdrawals from any Lockbox Account, except as ~~the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”~~provided in Section 6.01(b)(ii)~~, bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties~~. (ii) The ~~Servicer, for the benefit of the Noteholders, shall establish~~ Seller and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer have instructed all existing Obligors of Transferred Receivables, and will instruct all future Obligors, to make payments in ~~such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations~~ respect of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account Transferred Receivables only (A) by check or money order mailed to ~~be moved to an Account Holder that is an Eligible Institution~~ one or more lockboxes or post office boxes under the control of the Operating Agent (each such box being a "LOCKBOX"), or (B) ~~with respect~~ by wire transfer or moneygram directly to a Lockbox Account, or (C) by direct debit from such Obligor's account to the ~~Designated~~ Lockbox Account. The Lockboxes and Lockbox Accounts ~~only,~~ to ~~be moved to the corporate trust department~~ which mail payments are made as of the ~~Account Holder~~date hereof are listed on the attached Schedule 6. ~~All amounts held in Designated Accounts (including amounts, if any, which~~ The Seller and the Servicer ~~is required to remit daily to the Collection Account pursuant to Section 5.02) shall~~shall endorse, to the extent ~~permitted by applicable laws~~necessary, ~~rules and regulations,~~ all checks or other instruments received in any Lockbox so that the same can be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account shall be invested~~ Lockbox Account, in ~~Eligible Investments which mature~~ the form so received (~~i) prior to~~ with all necessary endorsements), on the next ~~Distribution Date~~ Business Day after the Business Day on which such check or ~~(ii) at such later date as shall be otherwise permitted by the Rating Agencies~~other instruments are received. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such saleIn addition, the ~~amount on~~ Seller and Servicer shall deposit ~~in the Reserve Account would~~ or cause to be ~~less than the Specified Reserve Account Balance. Investment Earnings on funds~~ deposited in the ~~Designated Accounts~~ Lockbox Account all cash, checks, money orders or other Proceeds of Collateral received other than in a Lockbox or by wire payments, in the form so received (with all necessary endorsements), not later than the close of business on the Business Day following the date of such receipt, and until so deposited all such items or other Proceeds shall be ~~payable to~~ held in trust for the ~~Servicer~~Collateral Agent. ~~Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than~~ Neither the ~~Indenture Trustee,~~ Seller nor the Servicer shall ~~obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in~~ deposit any moneys not required or permitted under this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer Agreement or the ~~Depositor, payable to~~ Related Documents into the ~~order of the Issuing Entity, the Servicer~~ Lockboxes or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Lockbox Accounts. (iii) If a Lockbox Agreement terminates for any reason or any Lockbox Bank fails to comply with its obligations under the related Lockbox Agreement for any reason, then the Seller shall promptly notify all Obligors to make all future wire payments to a new Lockbox Account with another Lockbox Bank. The Seller shall not close the Lockbox Account unless it shall have (1) received the prior written consent of the Operating Agent and the Collateral Agent, (2) established a new account with the same Lockbox Bank or with a new depositary institution satisfactory to the Operating Agent and the Collateral Agent, (3) entered into an agreement covering such new account with the Lockbox Bank or with such new depositary institution substantially in the form of the Lockbox Agreement or which is otherwise satisfactory in all respects to the Operating Agent and the Collateral Agent (whereupon, for all purposes of this Agreement and the Related Documents, such new account shall become the Lockbox Account, such new agreement shall become the Lockbox Agreement and any new depositary institution shall become the Lockbox Bank), and (4) taken all such action as the Collateral Agent shall require to grant and perfect a first priority security interest in such new Lockbox Account to the Collateral Agent under Section 8.01 of this Agreement. Other than pursuant to this Section 6.01(a), the Seller or Servicer shall ~~have the power, revocable by the Indenture Trustee (~~not open any new Lockbox or ~~by the Owner Trustee with~~ Lockbox Account without the consent of the ~~Indenture Trustee) to instruct~~ Operating Agent, the ~~Indenture Trustee to make withdrawals~~ Collateral Agent and ~~payments from~~ the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the IndenturePurchaser. (iv) ~~The Indenture Trustee shall possess all right~~Notwithstanding anything contained herein to the contrary, ~~title and interest~~ payments made by any Obligor to a branch of the Servicer located in ~~and~~ any location described in Schedule 3 to ~~all funds on deposit~~ the Transfer Agreement (as such Schedule is modified from time to ~~time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts~~ time) shall be ~~under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~deposited in a Blocked Account. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Receivables Purchase and Servicing Agreement (New Pameco Georgia Corp)

Establishment of Accounts. ~~(i) The Servicer~~On the Closing Date, ~~for~~ the ~~benefit~~ Borrowers and certain of their respective Subsidiaries shall have established the ~~Financial Parties~~Lockboxes, ~~shall establish~~ Collection Accounts, Cash Collateral Accounts and ~~maintain in the name of the Indenture Trustee an Eligible Deposit Account known~~ Disbursement Accounts identified on Schedule 6.01-AA as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known "at closing accounts". As soon as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time practicable after the Closing Date, the ~~Servicer~~Borrowers agree to establish, ~~upon thirty (30) days’ written notice~~ and cause their respective Subsidiaries who are Subsidiary Guarantors, whose Capital Stock has been pledged under the Loan Documents, who act as agent for any Borrower in connection with the purchase and sale of Inventory and/or the invoicing and collection of Receivables or are otherwise agreed to by the Agent and the Company to establish, the Lockboxes, Collection Accounts, Cash Collateral Accounts and Disbursement Accounts identified on Schedule 6.01-AA as "post closing accounts". After any such bank account is established, the Borrowers or such Subsidiaries may change the bank accounts or add to the ~~Indenture Trustee or other Account Holder, shall have~~ bank accounts listed on Schedule 6.01-AA as their needs may require and agree to notify the ~~right~~ Agent in writing of any such changes (such schedule being deemed to ~~instruct an Account Holder to transfer~~ be amended by any ~~or all of the Designated Accounts to another Eligible Institution designated by the Servicer in~~ such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, ~~that Notes held~~ no Borrower and no such Subsidiary shall (x) change any Collection Account or zero-balance Disbursement Account (except as contemplated above) or establish any new Collection Account or zero-balance Disbursement Account with any bank which is not acceptable to the Agent and which, in the ~~Reserve~~ case of a Collection Account to be maintained at such bank, has not executed a Collection Account Agreement with respect to such Collection Account or (y) establish any other Disbursement Account or new Cash Collateral Account, or modify any arrangement with respect to any other existing Disbursement Account or Cash Collateral Account, without the prior consent of the Agent, which consent may be granted or withheld in the reasonable discretion of the Agent (it being understood and agreed that no Disbursement Account which is not a zero-balance account and no Cash Collateral Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold established at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person any bank other than the ~~Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations~~ Agent or an Affiliate of the ~~Securities Intermediary set forth~~ Agent). All Lockboxes and Collection Accounts maintained by any Subsidiary of a Borrower who acts as agent for any Borrower in ~~this Section 5.01~~ connection with the purchase and ~~an Opinion~~ sale of ~~Counsel that such Person can perform such obligations. (ii) With respect to~~ Inventory and/or the ~~Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts~~ invoicing and collection of Receivables shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of such Subsidiary for the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt account of such ~~property to the appropriate Designated Account~~Borrower. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Credit Agreement (Muehlstein Holding Corp)

Establishment of Accounts. (i) ~~The Servicer~~On or before the Closing Date, the Indenture Trustee, for the benefit of the ~~Financial~~ Secured Parties, shall establish and maintain with and in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables Trust 2011-4~~ Xxxxx Capital Master Funding LLC Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial~~ Secured Parties. The Collection Account shall include two subaccounts, one designated as the Interest Collection Account (the “Interest Collection Account”) and the other designated as the Principal Collection Account (the “Principal Collection Account”). (ii) ~~The Servicer~~On or before the Closing Date, the Indenture Trustee, for the benefit of the ~~Noteholders~~Secured Parties, shall establish and maintain with and in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables Trust 2011-4~~ Xxxxx Capital Master Funding LLC Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Noteholders~~Secured Parties. (iiii) On or before the Closing Date, the Indenture Trustee, for the benefit of the Secured Parties, shall establish and maintain with and in the name of the Indenture Trustee an Eligible Deposit Account known as the Xxxxx Capital Master Funding LLC Commitment Reserve Account (the “Commitment Reserve Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Secured Parties. (b) Each of the Designated Accounts shall be initially established with ~~the~~ U.S. Bank, as Indenture Trustee~~. At any time after the Closing Date~~, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with U.S. Bank so long as U.S. Bank is an ~~Account Holder if~~ Eligible Institution. Should U.S. Bank (or any other bank or trust company with which the ~~short-term debt obligations of such Account Holder~~ Designated Accounts are maintained) cease to ~~have the Required Deposit Rating (except that any Designated Account, may~~ be ~~maintained with~~ an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit RatingEligible Institution, then the Servicer ~~shall,~~ shall within ~~ten (10)~~ 10 Business Days (or such longer period, not to exceed ~~thirty (30)~~ 30 calendar days, as to which ~~each Rating Agency~~ the Deal Agent shall consent), with the Indenture Trustee’s assistance as necessary, cause ~~each affected~~ the Designated ~~Account (A)~~ Accounts to be moved to an ~~Account Holder that is an~~ Eligible Institution or consented to in writing by the Deal Agent. (Bc) ~~with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder.~~ All amounts held in the Designated Accounts ~~(including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02)~~ shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, ~~by such Account Holder~~ in Eligible ~~Investments~~Investments by the bank or trust company at which such accounts are held. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies7.01. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. All Investment Earnings on investments of funds ~~deposited~~ in the Designated Accounts shall be ~~payable~~ deposited in the Interest Collection Account pursuant to Section 7.02 and distributed on the ~~Servicer. Each Account Holder~~ next Payment Date pursuant to Section 7.04. (d) The Indenture Trustee or other Person holding a the Designated ~~Account~~ Accounts as provided in ~~this~~ Section ~~5.01(b)(i),~~ 7.01(b) shall be a the “Securities Intermediary.” ”. If a the Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section ~~5.01 and an Opinion of Counsel that such Person can perform such obligations~~7.01. (iii) With respect to the Designated Account Property, the ~~Account Holder~~ Indenture Trustee agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. Each Designated Account is a “securities account” within the meaning of Section 8-501 of the New York UCC, and the Securities Intermediary is acting hereunder in the capacity of a “securities intermediary” within the meaning of Section 8-102(a)(14) of the New York UCC. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~Originator, payable to the order of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Originator or specially indorsed to the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Originator except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the ~~Issuing Entity~~Issuer, the Servicer, the ~~Depositor~~ Originator, or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the ~~Issuing Entity~~Issuer, the ~~Depositor~~Originator, the ~~Servicer, the Account Holder~~ Servicer or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section ~~5.01(b)(ii)(E~~7.01(d)(i)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the ~~Servicer~~ Servicer, the Issuer and the ~~Issuing Entity~~ Deal Agent thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in ~~Appendix B to~~ Section 13.03 of this Agreement. (J) The ~~Account Holder~~ Indenture Trustee shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (~~iii~~ii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the ~~Owner Trustee with the consent of the Indenture Trustee)~~ Deal Agent to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer ~~or the Owner Trustee~~ to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iviii) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds ~~thereof (except Investment Earnings)~~thereof. Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the ~~Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~Secured Parties. (viv) The Servicer shall not direct the ~~Account Holder~~ Indenture Trustee to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (~~c) [Reserved]. (d~~e) The Indenture Trustee, the ~~Owner Trustee, the~~ Securities ~~Intermediary, the Account Holder~~ Intermediary and each other Eligible Deposit Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Golub Capital BDC LLC)

Establishment of Accounts. ~~(i)~~ The ~~Servicer~~Trustee shall establish and maintain the Interest Reserve Account, the Principal Reserve Account and the Payment Account in the name of the Trustee for the benefit of the ~~Financial Parties, shall establish and maintain in the name~~ Holders of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) New Notes. Each of the ~~Designated Accounts~~ Interest Reserve Account and the Principal Reserve Account shall be a segregated, non-interest-bearing trust account initially established with the ~~Indenture Trustee. At any time after~~ Trustee and maintained with the ~~Closing Date,~~ Trustee so long as (i) the ~~Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all~~ deposits of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to Trustee have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (Bii) ~~with respect to~~ the ~~Designated Accounts only, to be moved to~~ Interest Reserve Account and the ~~corporate~~ Principal Reserve Account is maintained as a fully segregated trust ~~department of the Account Holder~~account. All amounts held in ~~Designated Accounts (including amounts, if any, which~~ the ~~Servicer is required to remit daily to~~ Interest Reserve Account and the ~~Collection~~ Principal Reserve Account ~~pursuant to Section 5.02) shall, to~~ shall be invested in Cash Equivalents by the ~~extent permitted by applicable laws, rules and regulations, be invested~~Trustee, at the written direction of the ~~Servicer~~Administrative Agent, by in each case such ~~Account Holder in Eligible Investments~~investments must mature not later than the 15th day of the following month. Such written direction shall ~~constitute certification by the Servicer~~ certify that any such ~~investment~~ invest ment is authorized by this Section ~~5.01~~4.1 and complies with the requirements of Cash Equivalents. ~~Funds deposited~~ On the 15th day of each month any earnings (net of losses and investment expenses) on funds or deposits in the Interest Reserve Account or the Principal Reserve Account will be withdrawn from such accounts by the Trustee as directed by the Administrative Agent and paid to the Company, or at the option of the Administrative Agent and the Company retained in the Interest Reserve Account or the Principal Reserve Account, as applicable. Investment earnings retained in the Interest Reserve Account shall be ~~invested in Eligible Investments which mature (i) prior to~~ applied towards the ~~next Distribution Date or (ii) at such later date as~~ following Monthly Interest Reserve Amount. The Payment Account shall be ~~otherwise permitted by~~ a segregated, non-interest-bearing trust account initially established with the ~~Rating Agencies. Investments in Eligible Investments shall be made in~~ Trustee and maintained with the ~~name of the Indenture~~ Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity for so long as (x) the ~~Servicer directs~~ deposits of the ~~Indenture~~ Trustee ~~to make such sale~~ have the Required Deposit Rating or ~~disposition,~~ (y) the ~~Indenture~~ Payment Account is maintained as a fully segregated trust account. The amounts in the Payment Account shall not be invested. Should the deposits of the Trustee ~~gives reasonable prior notice~~ no longer have the Required Deposit Rating and the Payment Account, the Interest Reserve Account or the Principal Reserve Account, as applicable, shall not be main- tained as a fully segregated trust account, then the Administrative Agent shall, with the Trustee's assistance as necessary, cause the Interest Reserve Account or the Principal Reserve Account to be moved, within 60 days after the occurrence of the later of the loss of the Required Deposit Rating or the cessation of such ~~disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if~~accounts being maintained as fully segregated trust accounts, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer bank or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by trust company organized under the laws of the ~~State of New York, regardless~~ United States of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entitystate thereof, the ~~Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation~~ deposits of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which ~~such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer~~ shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the IndentureRequired Deposit Rating. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Indenture (Sri Receivables Purchase Co)

Establishment of Accounts. (i) The Servicer, for the benefit of the ~~Financial Parties~~Securityholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 1994-B Owner Trust ~~2011-4~~ Collection Account (the “"Collection Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Securityholders. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 1994-B Owner Trust ~~2011-4~~ Note Distribution Account (the “"Note Distribution Account”"), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) Pursuant to the Trust Agreement, the Servicer, for the benefit of the Certificateholders, shall establish and maintain at Chemical Bank in the name of the Owner Trustee an Eligible Deposit Account known as the Navistar Financial 1994-B Owner Trust Certificate Distribution Account (the "Certificate Distribution Account") bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture~~ Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with ~~an Account Holder if~~ the ~~short-term debt obligations of such Account Holder cease to have the Required Deposit Rating~~ Indenture Trustee so long as (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should A) the short-term unsecured debt obligations of ~~an Account Holder no longer~~ the Indenture Trustee have the Required Deposit ~~Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each~~ Rating ~~Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution~~ or (B) ~~with respect to~~ each of the Designated Accounts ~~only, to be moved to~~ are maintained in the corporate trust department of the ~~Account Holder~~Indenture Trustee. All amounts held in ~~Designated Accounts~~ such accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such ~~Account Holder~~ bank or trust company in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature ~~(i)~~ prior to the next Distribution Date ~~or (ii) at such later date~~ except, and then only to the extent, as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided, however, that Notes held in~~ . Should the ~~Reserve Account may be sold or disposed~~ short-term unsecured debt obligations of ~~prior to their maturity so long as (x) the Servicer directs~~ the Indenture Trustee (or any other bank or trust company with which the Designated Accounts are maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to ~~make such sale or disposition~~exceed 30 calendar days, ~~(y)~~ as to which each Rating Agency shall consent), with the Indenture ~~Trustee gives reasonable prior notice~~ Trustee's assistance as necessary, cause the Designated Accounts (A) to be moved to a bank or trust company, the short-term unsecured debt obligations of ~~such disposition~~ which shall have the Required Deposit Rating, or (B) to be moved to the ~~Administrator and (z) such Notes are sold at a price equal to or greater than~~ corporate trust department of the ~~unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance~~Indenture Trustee. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the ~~Servicer. Each Account Holder holding a Designated Account~~ Seller except when the Indenture Trustee is acting as ~~provided~~ successor Servicer in ~~this Section 5.01(b)(i),~~ which case such Investment Earnings shall be ~~a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than~~ payable to the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsTrustee as successor Servicer. (ii) With respect to the Designated Account Property, the ~~Account Holder~~ Indenture Trustee agrees, by its acceptance hereof, that: (A) ~~Any~~ any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts~~. The Designated Accounts are accounts~~ ; and each such Eligible Deposit Account shall be subject to ~~which Financial Assets will be credited.~~the exclusive custody and control of the Indenture Trustee, and the Indenture Trustee shall have sole signature authority with respect thereto; (B) ~~All securities or other property underlying~~ any ~~Financial Assets credited to the~~ Designated ~~Accounts~~ Account Property that constitutes Physical Property shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the ~~Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account.~~ Indenture Trustee in accordance with paragraph (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9i) of the ~~New York UCC. (E) If at any time the Securities Intermediary~~ definition of "Delivery" and shall ~~receive any order from~~ be held, pending maturity or disposition, solely by the Indenture Trustee ~~directing transfer~~ or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts a financial intermediary (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as such term is defined in Section 8-~~102(a)(8~~313(4) of the ~~New York~~ UCC) acting solely for the Indenture Trustee; (C) any Designated Account Property that is a book-entry security held through the Federal Reserve System pursuant to federal book-entry regulations shall be delivered in accordance with paragraph (ii) of the definition of "Delivery" and shall be maintained by the Indenture Trustee, pending maturity or disposition, through continued book-entry registration of such ~~other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into,~~ Designated Account Property as described in such paragraph; (D) any ~~agreement with the Issuing Entity, the Depositor, the Servicer, the~~ Designated Account ~~Holder or the Indenture Trustee purporting to limit or condition the obligation~~ Property that is an "uncertificated security" under Article 8 of the ~~Securities Intermediary~~ UCC and that is not governed by clause (C) above shall be delivered to ~~comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of~~ the Indenture Trustee in accordance with paragraph (iii) of the ~~Designated Accounts, the Securities Intermediary has no actual knowledge~~ definition of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify "Delivery" and shall be maintained by the Indenture Trustee, ~~the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies~~ pending maturity or disposition, through continued registration of ~~all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and~~ the Indenture Trustee~~, at the addresses set forth in Appendix B to this Agreement.~~'s (or its nominee's) ownership of such security; and (JE) ~~The Account Holder~~ the Indenture Trustee shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the ~~exclusive~~ sole dominion and control of the Indenture Trustee for the benefit of the ~~Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~Securityholders. (v) The Servicer shall not direct the ~~Account Holder~~ Indenture Trustee to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the ~~Account Holder~~ Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) ~~[Reserved]~~Pursuant to the Trust Agreement, the Owner Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Certificate Distribution Account and in all proceeds thereof. Except as otherwise provided herein or in the Trust Agreement, the Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee for the benefit of the Certificateholders. If, at any time, the Certificate Distribution Account ceases to be an Eligible Deposit Account, the Servicer shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which each Rating Agency may consent) establish a new Certificate Distribution Account as an Eligible Deposit Account and shall cause the Owner Trustee to transfer any cash and/or any investments in the old Certificate Distribution Account to such new Certificate Distribution Account. (d) The Indenture Trustee, the Owner ~~Trustee, the Securities Intermediary, the Account Holder~~ Trustee and each other Eligible Deposit Institution with whom a Designated Account or the Certificate Deposit Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ ' lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Navistar Financial Retail Receivables Corporation)

Establishment of Accounts. (a) The Servicer shall establish and maintain: (i) ~~The Servicer, for~~ For the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Collection Account~~ deposit of Collections (the “"Collection Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the ~~Financial Parties~~Noteholders and the Certificateholders. (ii) ~~The Servicer, for~~ For the benefit of the Noteholders, ~~shall establish and maintain~~ in the name of the Indenture ~~Trustee~~ Trustee, an Eligible Deposit Account ~~known as~~ for the ~~Ally Auto Receivables Trust 2011-4 Note Distribution Account~~ deposit of distributions to the Noteholders (the “"Note Distribution Account”"), bearing ~~an additional~~ a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. Each Account shall be an Eligible Deposit Account established initially at Chase. (ib) ~~Each of the Designated Accounts shall be initially established with the Indenture Trustee. At~~ Should any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations depositary of an Account ~~Holder no longer have~~ or of the ~~Required Deposit Rating~~Certificate Distribution Account (including Chase (or an Affiliate thereof)) cease to be either a Qualified Institution or a Qualified Trust Institution, as applicable, then the Servicer shall, ~~within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent),~~ with the ~~Indenture Trustee’s~~ Seller's assistance as necessary, cause ~~each affected Designated~~ the related Account ~~(A)~~ to be moved to ~~an Account Holder that is an Eligible~~ a Qualified Institution or ~~(B)~~ a Qualified Trust Institution, unless the Rating Agency Condition is satisfied in connection with ~~respect to the Designated Accounts only,~~ such depositary's ceasing to be ~~moved to~~ a Qualified Institution or a Qualified Trust Institution, as the ~~corporate trust department of the Account Holder~~case may be. All amounts held in ~~Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to~~ the Collection Account ~~pursuant to Section 5.02) shall, to~~ shall be invested by the ~~extent permitted by applicable laws, rules and regulations, be invested,~~ bank or trust company then maintaining the account (at the written direction of the Servicer) in Permitted Investments that mature not later than the Deposit Date next succeeding the date of investment (or, ~~by such Account Holder in Eligible Investments. Such written direction shall constitute certification by~~ if the ~~Servicer that any such investment is authorized by this Section 5.01. Funds deposited~~ Class A-1 Event has occurred, not later than July 8, 1999, in the ~~Reserve Account shall be invested~~ case of investments made on or after the Deposit Date in ~~Eligible Investments which mature (i)~~ June 1999 and prior to the ~~next Distribution~~ Deposit Date ~~or (ii~~in July 1999, in an amount at least equal to the July 1999 Class A-1 Note Distribution) ~~at such later date as shall be otherwise permitted by~~ except, if the ~~Rating Agencies. Investments in Eligible Investments shall be made in the name of~~ Collection Account is maintained with the Indenture Trustee or for investments on which the Indenture Trustee is the obligor (including repurchase agreements on which the Indenture Trustee, in its ~~nominee~~commercial capacity, ~~and such~~ is liable as principal), which investments ~~shall not be sold or disposed of prior to their maturity~~may mature on the next succeeding Distribution Date; provided, however, that ~~Notes~~ once such amounts have been invested by such bank or trust company, as applicable, in Permitted Investments, such Permitted Investments must be held in or maintained until they mature on or before the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount dates described above. Amounts on deposit in the ~~Reserve~~ Note Distribution Account ~~would~~ shall not be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligationsinvested. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (ivc) The Indenture Trustee shall possess all right, title and interest in ~~and to~~ all funds on deposit from time to time in the ~~Designated~~ Accounts and in all proceeds thereof (~~except~~ excluding Investment Earnings)) and all such funds, investments, proceeds and income shall be part of the Owner Trust Estate. Except as otherwise provided ~~herein or in the Indenture~~herein, the ~~Designated~~ Accounts shall be under the ~~exclusive~~ sole dominion and control of ~~the~~ Indenture Trustee for the benefit of the ~~Securityholders~~ Noteholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment Certificateholders, or the ~~proceeds of such sale~~Noteholders, ~~in either~~ as the case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectmay be. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Chase Manhattan Auto Owner Trust 1998-C)

Establishment of Accounts. (a) The Lockbox Account. ------------------- (i) The ~~Servicer~~Seller has established with a Lockbox Bank each Lockbox Account, ~~for~~ into which the ~~benefit~~ Servicer shall deposit from time to time all monies, instruments and other property received by it as Proceeds of the ~~Financial Parties~~Transferred Receivables. The Seller agrees that prior to a Termination Event the Operating Agent, and upon the occurrence and during the continuation of a Termination Event the Collateral Agent, shall ~~establish~~ have exclusive dominion and ~~maintain~~ control of each Lockbox Account and all monies, instruments and other property from time to time in ~~the name of the Indenture Trustee an Eligible Deposit Account known~~ each Lockbox Account. The Seller will not make or cause to be made, or have any ability to make or cause, any withdrawals from any Lockbox Account, except as ~~the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”~~provided in Section 6.01(b)(ii)~~, bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties~~. (ii) The ~~Servicer, for the benefit of the Noteholders, shall establish~~ Seller and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer have instructed all existing Obligors of Transferred Receivables, and will instruct all future Obligors, to make payments in ~~such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations~~ respect of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account Transferred Receivables only (A) by check or money order mailed to ~~be moved to an Account Holder that is an Eligible Institution~~ one or more lockboxes or post office boxes under the control of the Operating Agent (each such box being a "LOCKBOX"), or (B) ~~with respect~~ by wire transfer or moneygram directly to a Lockbox Account, or (C) by direct debits from such Obligor's account to the ~~Designated~~ Lockbox Account. The Lockboxes and Lockbox Accounts ~~only,~~ to ~~be moved to the corporate trust department~~ which mail payments are made as of the ~~Account Holder~~date hereof are listed on the attached Schedule 6. ~~All amounts held in Designated Accounts (including amounts, if any, which~~ The Seller and the Servicer ~~is required to remit daily to the Collection Account pursuant to Section 5.02) shall~~shall endorse, to the extent ~~permitted by applicable laws~~necessary, ~~rules and regulations,~~ all checks or other instruments received in any Lockbox so that the same can be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the ~~Reserve Account shall be invested~~ Lockbox Account, in ~~Eligible Investments which mature~~ the form so received (~~i) prior to~~ with all necessary endorsements), on the next ~~Distribution Date~~ Business Day after the Business Day on which such check or ~~(ii) at such later date as shall be otherwise permitted by the Rating Agencies~~other instruments are received. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such saleIn addition, the ~~amount on~~ Seller and Servicer shall deposit ~~in the Reserve Account would~~ or cause to be ~~less than the Specified Reserve Account Balance. Investment Earnings on funds~~ deposited in the ~~Designated Accounts~~ Lockbox Account all cash, checks, money orders or other Proceeds of Collateral received other than in a Lockbox or by wire payments, in the form so received (with all necessary endorsements), not later than the close of business on the Business Day following the date of such receipt, and until so deposited all such items or other Proceeds shall be ~~payable to~~ held in trust for the ~~Servicer~~Collateral Agent. ~~Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than~~ Neither the ~~Indenture Trustee,~~ Seller nor the Servicer shall ~~obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in~~ deposit any moneys not required or permitted under this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer Agreement or the ~~Depositor, payable to~~ Related Documents into the ~~order of the Issuing Entity, the Servicer~~ Lockboxes or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Lockbox Accounts. (iii) If a Lockbox Agreement terminates for any reason or any Lockbox Bank fails to comply with its obligations under the related Lockbox Agreement for any reason, then the Seller shall promptly notify all Obligors to make all future wire payments to a new Lockbox Account with another Lockbox Bank. The Seller shall not close the Lockbox Account unless it shall have (1) received the prior written consent of the Operating Agent and the Collateral Agent, (2) established a new account with the same Lockbox Bank or with a new depositary institution reasonably satisfactory to the Operating Agent and the Collateral Agent, (3) entered into an agreement covering such new account with the Lockbox Bank or with such new depositary institution substantially in the form of the Lockbox Agreement or which is otherwise satisfactory in all respects to the Operating Agent and the Collateral Agent (whereupon, for all purposes of this Agreement and the Related Documents, such new account shall become the Lockbox Account, such new agreement shall become the Lockbox Agreement and any new depositary institution shall become the Lockbox Bank), and (4) taken all such action as the Collateral Agent shall require to grant and perfect a first priority security interest in such new Lockbox Account to the Collateral Agent under Section 8.01 of this Agreement. Other than pursuant to this Section 6.01(a), the Seller or Servicer shall ~~have the power, revocable by the Indenture Trustee (~~not open any new Lockbox or ~~by the Owner Trustee with~~ Lockbox Account without the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings). Except as otherwise provided herein or in the IndentureOperating Agent, the ~~Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders~~ Collateral Agent and the ~~Indenture Trustee shall have sole signature power and authority with respect thereto~~Purchaser. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Receivables Purchase and Servicing Agreement (Merisel Inc /De/)

Establishment of Accounts. (a) The Lockbox Accounts and the Concentration Account. (i) The Seller has established with each Lockbox Account Bank one or more Lockbox Accounts. The Seller has established the Concentration Account with the Concentration Account Bank. The Seller agrees that, at any time (A) after the occurrence of a Termination Event, Incipient Termination Event, Servicer Termination Event or Incipient Servicer Termination Event or (B) the Liquidity Availability is less than $20,000,000, the Administrative Agent (i) is authorized to deliver a Notice of Direction or similar notice of control to each Lockbox Account Bank and each Concentration Account Bank and (ii) shall have exclusive dominion and control of each Lockbox Account and the Concentration Account and all monies, instruments and other property from time to time on deposit therein. If on any date (x) the Administrative Agent has delivered a Notice of Direction or similar notice of control on account of the Liquidity Availability being less than $20,000,000, (y) the Liquidity Availability on such date exceeds $20,000,000 and has exceeded $20,000,000 at all times during the 90 consecutive day period immediately prior to such date and (z) no Termination Event, Incipient Termination Event, Servicer Termination Event or Incipient Servicer Termination Event has occurred and is then continuing, then (upon the written request of the Seller) the Administrative Agent shall negotiate in good faith with the Seller to establish procedures for instructing each Lockbox Account Bank and Concentration Account Bank so notified that they may re-commence following instructions of the Seller or the Servicer, as applicable, with respect to the particular account. Prior to the delivery of a Notice of Direction by the Administrative Agent, the Seller shall have access to and may make withdrawals from the Lockbox Accounts and the Concentration Account; provided, however, that all such funds so withdrawn shall be applied by the Seller in accordance with the provisions of this Article VI and any funds to be remitted to the Administrative Agent, any Purchaser or the Collateral Agent shall be held in trust for the benefit of the Administrative Agent, the Purchasers and the Collateral Agent, as applicable, and that (as provided in Section 6.01(b)(ii) hereof) (a) on each Business Day, funds in amounts sufficient to pay all sums specified in Section 6.02 to be paid on such Business Day and (b) on each Weekly Settlement Day, funds in an amount sufficient to fund all amounts (without duplication) specified in Sections 6.02, 6.03 (other than 6.03(c)), 6.04 (other than 6.04(a)(iv)) and 6.05 (other than 6.05(g)), shall be wired by Seller to the Collection Account to be on deposit in immediately available funds prior to 12:00 Noon. (New York time) on such day. After the delivery of a Notice of Direction by the Administrative Agent, the Seller shall not make or cause to be made, or have any ability to make or cause to be made, any withdrawals from any Lockbox Account or the Concentration Account except as provided in Section 6.01(b)(iii). (ii) The Seller and/or the Servicer have instructed all existing Obligors of Transferred Receivables, and shall instruct all future Obligors of such Receivables, to make payments in respect thereof only (A) by check or money order mailed to one or more lockboxes or post office boxes under the control of the Administrative Agent (each a "Lockbox" and collectively the "Lockboxes") pursuant to the terms of a Lockbox Account Agreement or (B) by wire transfer or moneygram directly to a Lockbox Account. Schedule 4.01(r) lists all Lockboxes and all Lockbox Account Banks at which the Seller maintains Lockbox Accounts as of the Closing Date, and such schedule correctly identifies (1) with respect to each such Lockbox Account Bank, the name, address and telephone number thereof, (2) with respect to each Lockbox Account, the name in which such account is held and the complete account number therefor, and (3) with respect to each Lockbox, the lockbox number and address thereof. The Seller and the Servicer shall endorse, to the extent necessary, all checks or other instruments received in any Lockbox so that the same can be deposited in the Lockbox Account, in the form so received (with all necessary endorsements), on the first Business Day after the date of receipt thereof. In addition, each of the Seller and the Servicer shall deposit or cause to be deposited into a Lockbox Account or the Concentration Account all cash, checks, money orders or other proceeds of Transferred Receivables or Seller Collateral received by it other than in a Lockbox or a Lockbox Account, in the form so received (with all necessary endorsements), not later than the close of business on the first Business Day following the date of receipt thereof, and until so deposited all such items or other proceeds shall be held in trust, as trustee, for the benefit of the ~~Financial Parties, shall establish and maintain in~~ Collateral Agent. Neither the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (i) Each of the Designated Accounts shall be initially established with the Indenture Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to the next Distribution Date or (ii) at such later date as shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount on deposit in the Reserve Account would be less than the Specified Reserve Account Balance. Investment Earnings on funds deposited in the Designated Accounts shall be payable to the Servicer. Each Account Holder holding a Designated Account as provided in this Section 5.01(b)(i), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, Seller nor the Servicer shall ~~obtain~~ make any deposits into a Lockbox or any Lockbox Account except in accordance with the ~~express agreement~~ terms of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (ii) With respect to the Designated Account Property, the Account Holder agrees, by its acceptance hereof, that: (A) Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated AccountsRelated Document. (iii) If, for any reason, a Lockbox Account Agreement terminates or any Lockbox Account Bank fails to comply with its obligations under the Lockbox Account Agreement to which it is a party, then the Seller shall promptly notify all Obligors of Transferred Receivables who had previously been instructed to make any payments to a Lockbox Account maintained at any such Lockbox Account Bank to make all future payments to a new Lockbox Account in accordance with this Section 6.01(a)(iii). The ~~Servicer~~ Seller shall not close any such Lockbox Account unless it shall have (A) received the ~~power, revocable by the Indenture Trustee (or by the Owner Trustee with the~~ prior written consent of the ~~Indenture Trustee~~Administrative Agent, (B) established a new account with the same Lockbox Account Bank or with a new depositary institution satisfactory to ~~instruct~~ the ~~Indenture Trustee~~ Administrative Agent, (C) entered into an agreement covering such new account with such Lockbox Account Bank or with such new depositary institution substantially in the form of such Lockbox Account Agreement or that is satisfactory in all respects to ~~make withdrawals~~ the Administrative Agent (whereupon, for all purposes of this Agreement and ~~payments from~~ the ~~Designated Accounts for~~ other Related Documents, such new account shall become a Lockbox Account, such new agreement shall become a Lockbox Account Agreement and any new depositary institution shall become a Lockbox Account Bank), and (D) taken all such action as the ~~purpose~~ Administrative Agent shall require to grant and perfect a first priority Lien in such new Lockbox Account to the Purchaser under Section 8.01 of ~~permitting~~ this Agreement. Except as permitted by this Section 6.01(a), neither the Seller nor the Servicer shall open any new Lockbox or Lockbox Account without the ~~Owner Trustee to carry out its respective duties hereunder or permitting~~ prior written consent of the ~~Indenture Trustee to carry out its duties under the Indenture~~Administrative Agent. (iv) ~~The Indenture Trustee shall possess~~ Schedule 4.01(r) correctly identifies the Concentration Account, the name, address and telephone number of the Concentration Account Bank, and the name in which the Concentration Account is held and the complete account number therefor. If, for any reason, the Lockbox Account Agreement applicable to the Concentration Account terminates or the Concentration Account Bank fails to comply with its obligations under such Lockbox Account Agreement, then the Administrative Agent may direct the Lockbox Account Banks to forward all ~~right, title and interest in and to all funds on deposit from time to time~~ Collections received in the ~~Designated~~ Lockbox Accounts ~~and~~ to the Collection Account. The Seller shall not close the Concentration Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with the same Concentration Account Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Concentration Account Bank or with such new depositary institution substantially in the form of a Lockbox Account Agreement or that is satisfactory in all ~~proceeds thereof~~ respects to the Administrative Agent (~~except Investment Earnings~~whereupon, for all purposes of this Agreement and the other Related Documents, such new account shall become a Concentration Account, such new agreement shall become a Lockbox Account Agreement and any new depositary institution shall become a Concentration Account Bank), and (D) taken all such action as the Administrative Agent shall require to grant and perfect a first priority Lien in such new Concentration Account to the Purchaser under Section 8.01 of this Agreement. Except as ~~otherwise provided herein or in~~ permitted by this Section 6.01(a), neither the ~~Indenture,~~ Seller nor the ~~Designated Accounts~~ Servicer shall ~~be under~~ open any Concentration Account without the ~~exclusive dominion and control~~ prior written consent of the ~~Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto~~Administrative Agent. (v) ~~The Servicer~~ Pursuant to Section 6.02, the Seller shall ~~not direct~~ instruct each Lockbox Account Bank to transfer, and the Seller hereby grants the Administrative Agent the authority to instruct each such Lockbox Account ~~Holder~~ Bank to ~~make any investment of any~~ transfer, on each Business Day in same day funds, all available funds ~~or to sell any investment held~~ in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction each Lockbox Account to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectConcentration Account. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Receivables Purchase and Servicing Agreement (Avondale Inc)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Ally Auto Receivables Trust 2011-4 Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (ia) Each ~~of the Designated Accounts shall be initially established with the Indenture Trustee. At any time~~ Embassy Operating Lessee shall, within sixty (60) days after the Closing Date, (i) establish, at Borrowers’ sole cost and expense, a Property Account (each an “Embassy Property Account,” and collectively, the ~~Servicer~~“Embassy Property Accounts”) with one or more Property Account Banks into which the applicable Embassy Manager shall deposit all Gross Income from Operations from the related Embassy Property, ~~upon thirty~~ and (30ii) ~~days’ written notice to~~ execute agreements with Administrative Agent and each Property Account Bank, and if required by Administrative Agent, the ~~Indenture Trustee or other Account Holder,~~ applicable Embassy Manager (1) providing that Administrative Agent shall have the ~~right~~ sole dominion and control over such Embassy Property Account and that neither Borrowers nor any Manager shall have access to ~~instruct an Account Holder to transfer any~~ or ~~all of~~ control over the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account shall be maintained with an Account Holder if the short-term debt obligations of such Account Holder cease to have the Required Deposit Rating (except that any Designated Embassy Property Account, ~~may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating~~(2) providing that, if such Account Holder maintains such Designated Account in its corporate trust department). Should the short-term unsecured debt obligations of an Account Holder no longer have the Required Deposit Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution or (B) with respect to the Designated Accounts only, to be moved to the corporate trust department of the Account Holder. All amounts held in Designated Accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section 5.02) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such Account Holder in Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section 5.01. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature (i) prior to ~~the next Distribution Date or (ii) at~~ any Property Account Bank’s receipt of a Lockbox Period Trigger Notice, such ~~later date as~~ Property Account Bank shall be otherwise permitted by the Rating Agencies. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity; provided, however, that Notes held in the Reserve Account may be sold or disposed of prior to their maturity so long as (x) the Servicer directs the Indenture Trustee to make such sale or disposition, (y) the Indenture Trustee gives reasonable prior notice of such disposition to the Administrator and (z) such Notes are sold at a price equal to or greater than the unpaid principal balance thereof if, following such sale, the amount remit all available funds on deposit in the ~~Reserve~~ Embassy Property Account ~~would be less than~~ by wire transfer (or transfer via the ~~Specified Reserve~~ ACH System) on each Business Day to the Embassy Manager Account, (3) providing that, from and after Property Account ~~Balance. Investment Earnings~~ Bank’s receipt of a Lockbox Period Trigger Notice, such Property Account Bank shall remit all available funds on ~~funds deposited~~ deposit in the ~~Designated Accounts shall be payable~~ Embassy Property Account by wire transfer (or transfer via the ACH System) on each Business Day to the ~~Servicer. Each~~ Lockbox Account, and (4) otherwise in form and substance satisfactory to Administrative Agent (the “Embassy Property Account ~~Holder holding a Designated Account as provided in this Section 5.01(b)(i~~Agreement”), shall be a “Securities Intermediary.” If a Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01 and an Opinion of Counsel that such Person can perform such obligations. (b) Each Sheraton Operating Lessee shall within sixty (60) days after the Closing Date, (i) establish, at Borrowers’ sole cost and expense, a Property Account (each a “Sheraton Property Account,” and collectively, the “Sheraton Property Accounts”) with one or more Property Account Banks into which the applicable Sheraton Manager shall deposit all Gross Income from Operations from the related Sheraton Property, and (ii) ~~With respect to the Designated~~ execute agreements with Administrative Agent and each Property Account ~~Property~~Bank, and if required by Administrative Agent, the ~~Account Holder agrees, by its acceptance hereof, that:~~ applicable Sheraton Manager (A1) ~~Any Designated Account Property~~ providing that is held in deposit accounts shall be held solely in Eligible Deposit Accounts. The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the Issuing Entity, the Servicer or the Depositor, payable to the order of the Issuing Entity, the Servicer or the Depositor or specially indorsed to the Issuing Entity, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be credited upon receipt of such property to the appropriate Designated Account. (D) Each item of property (whether investments, investment property, Financial Assets, securities, instruments or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such order without further consent by the Issuing Entity, the Servicer, the Depositor or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Designated Accounts and/or any Financial Assets or other property credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Issuing Entity, the Depositor, the Servicer, the Account Holder or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer Administrative Agent shall have the ~~power~~sole dominion and control over such Sheraton Property Account and that neither Borrowers nor any Manager shall have access to or control over the Sheraton Property Account, ~~revocable by the Indenture Trustee~~ (~~or by the Owner Trustee with the consent of the Indenture Trustee~~2) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee providing that such Property Account Bank shall ~~possess~~ remit all ~~right, title and interest in and to all~~ available funds on deposit ~~from time to time~~ in the ~~Designated Accounts and in all proceeds thereof~~ Sheraton Property Account by wire transfer (~~except Investment Earnings). Except as otherwise provided herein~~ or in transfer via the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (vACH System) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction on each Business Day to the Sheraton Manager Account, and (3) otherwise in form and substance satisfactory to Administrative Agent (the “Sheraton Property Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effectAgreement”). (c) ~~[Reserved]~~Administrative Agent shall, within thirty (30) days after the Closing Date, establish, at Borrowers’ sole cost and expense, an account (the “Lockbox Account”) into which (i) during a Lockbox Period, all funds on deposit in the Embassy Property Accounts shall be transferred on a daily basis as described in clause (a) above, and (ii) all funds payable to Borrowers or their Affiliates by the Sheraton Managers pursuant to the Sheraton Management Agreements shall be deposited as and when provided in the Sheraton Management Agreements. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Credit Agreement (FelCor Lodging Trust Inc)

Establishment of Accounts. (i) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2007-BNS Owner Trust ~~2011-4~~ Collection Account (the “Collection Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (ii) The Servicer, for the benefit of the Noteholders, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the ~~Ally Auto Receivables~~ Navistar Financial 2007-BNS Owner Trust ~~2011-4~~ Note Distribution Account (the “Note Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. (iii) Pursuant to the Trust Agreement, the Servicer, for the benefit of the Certificateholders, shall establish and maintain in the name of the Trust an Eligible Deposit Account known as the Navistar Financial 2007-BNS Owner Trust Certificate Distribution Account (the “Certificate Distribution Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Certificateholders. (iv) The Servicer, for the benefit of the Financial Parties, shall establish and maintain in the name of the Indenture Trustee an Eligible Deposit Account known as the Navistar Financial 2007-BNS Owner Trust Reserve Account (the “Reserve Account”), bearing an additional designation clearly indicating that the funds deposited therein are held for the benefit of the Financial Parties. (i) Each of the Designated Accounts shall be initially established with the Indenture ~~Trustee. At any time after the Closing Date, the Servicer, upon thirty (30) days’ written notice to the Indenture~~ Trustee or other Account Holder, shall have the right to instruct an Account Holder to transfer any or all of the Designated Accounts to another Eligible Institution designated by the Servicer in such notice. No Designated Account and shall be maintained with ~~an Account Holder if~~ the ~~short-term debt obligations of such Account Holder cease to have the Required Deposit Rating~~ Indenture Trustee so long as (except that any Designated Account, may be maintained with an Account Holder even if the short-term debt obligations of such Account Holder do not have the Required Deposit Rating, if such Account Holder maintains such Designated Account in its corporate trust department). Should A) the short-term unsecured debt obligations of ~~an Account Holder no longer~~ the Indenture Trustee have the Required Deposit ~~Rating, then the Servicer shall, within ten (10) Business Days (or such longer period, not to exceed thirty (30) calendar days, as to which each~~ Rating ~~Agency shall consent), with the Indenture Trustee’s assistance as necessary, cause each affected Designated Account (A) to be moved to an Account Holder that is an Eligible Institution~~ or (B) ~~with respect to~~ each of the Designated Accounts ~~only, to be moved to the corporate trust department of the Account Holder~~qualifies as an Eligible Deposit Account. All amounts held in ~~Designated Accounts~~ such accounts (including amounts, if any, which the Servicer is required to remit daily to the Collection Account pursuant to Section ~~5.02~~2.11) shall, to the extent permitted by applicable laws, rules and regulations, be invested, at the written direction of the Servicer, by such bank or trust company in Eligible Investments; provided, that funds in the Collection Account ~~Holder~~ in an amount not in excess of 20% of the Aggregate Receivables Balance as of the preceding Accounting Date may be invested in investments which have a rating from S&P of “A-1” rather than “A-1+,” if such investments otherwise constitute Eligible Investments. Such written direction shall constitute certification by the Servicer that any such investment is authorized by this Section ~~5.01~~2.02. Funds deposited in the Reserve Account shall be invested in Eligible Investments which mature ~~(i)~~ prior to the next Distribution ~~Date or (ii) at~~ Date; provided, that such investments may mature on a later date ~~as shall be otherwise permitted by~~ if the ~~Rating Agencies~~Agent consents. Investments in Eligible Investments shall be made in the name of the Indenture Trustee or its nominee, and such investments shall not be sold or disposed of prior to their maturity~~; provided, however, that Notes held in~~ . Should the ~~Reserve Account may be sold or disposed~~ short-term unsecured debt obligations of ~~prior to their maturity so long as (x) the Servicer directs~~ the Indenture Trustee (or any other bank or trust company with which the Designated Accounts are maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to ~~make such sale or disposition~~exceed 30 calendar days, ~~(y)~~ without consent of the Agent with respect thereto), with the Indenture ~~Trustee gives reasonable prior notice of such disposition~~ Trustee’s assistance as necessary, cause the Designated Accounts (A) to ~~the Administrator and (z) such Notes are sold at~~ be moved to a ~~price equal to~~ bank or ~~greater than the unpaid principal balance thereof if, following such sale~~trust company, the ~~amount on deposit in~~ short-term unsecured debt obligations of which shall have the ~~Reserve Account would~~ Required Deposit Rating, or (B) to be ~~less than the Specified Reserve Account Balance~~moved to an Eligible Deposit Account. Investment Earnings on funds deposited in the Designated Accounts shall be ~~payable to~~ deposited into the ~~Servicer~~Collection Account for distribution in accordance with Section 8.2 of the Indenture. ~~Each Account Holder~~ The Indenture Trustee or the other Person holding a the Designated ~~Account~~ Accounts as provided in this Section ~~5.01(b)(i),~~ 2.02(b)(i) shall be a the “Securities Intermediary.” If a the Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section ~~5.01 and an Opinion of Counsel that such Person can perform such obligations~~2.02. (ii) With respect to the Designated Account Property, the ~~Account Holder~~ Securities Intermediary agrees, by its acceptance hereof, that: (A) ~~Any Designated Account Property that is held in deposit accounts shall be held solely in Eligible Deposit Accounts.~~ The Designated Accounts are accounts to which Financial Assets will be credited. (B) All securities or other property underlying any Financial Assets credited to the Designated Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Designated Accounts be registered in the name of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~Seller, payable to the order of the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller or specially ~~indorsed~~ endorsed to the ~~Issuing Entity~~Issuer, the Servicer or the ~~Depositor~~ Seller except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank. (C) All property delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited ~~upon receipt of such property~~ to the appropriate Designated Account. (D) Each item of property (whether ~~investments,~~ investment property, Financial ~~Assets~~Asset, ~~securities~~security, ~~instruments~~ instrument or cash) credited to a Designated Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC. (E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the ~~Issuing Entity~~Issuer, the Servicer, the ~~Depositor~~ Seller or any other Person. (F) The Designated Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Designated Accounts (as well as the ~~Security~~ Securities Entitlements related thereto) shall be governed by the laws of the State of New York. (G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other ~~Person~~ person relating to the Designated Accounts and/or any Financial Assets ~~or other property~~ credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other ~~Person~~ person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the ~~Issuing Entity~~Issuer, the ~~Depositor~~Seller, the Servicer, the ~~Account Holder~~ Indenture Trustee or the ~~Indenture Trustee~~ Swap Counterparty purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(b)(ii)(E) hereof. (H) Except for the claims and interest of the Indenture Trustee in the Designated Accounts, the Securities Intermediary has no actual knowledge of claims to, or interests in, the Designated Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Designated Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Issuing Entity thereof. (I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Designated Accounts and/or any Designated Account Property simultaneously to each of the Servicer and the Indenture Trustee, at the addresses set forth in Appendix B to this Agreement. (J) The Account Holder shall maintain each item of Designated Account Property in the particular Designated Account to which such item originated and shall not commingle items from different Designated Accounts. (iii) The Servicer shall have the power, revocable by the Indenture Trustee (or by the Owner Trustee with the consent of the Indenture Trustee) to instruct the Indenture Trustee to make withdrawals and payments from the Designated Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture. (iv) The Indenture Trustee shall possess all right, title and interest in and to all funds on deposit from time to time in the Designated Accounts and in all proceeds thereof (except Investment Earnings2.02(b). Except as otherwise provided herein or in the Indenture, the Designated Accounts shall be under the exclusive dominion and control of the Indenture Trustee for the benefit of the Securityholders and the Indenture Trustee shall have sole signature power and authority with respect thereto. (v) The Servicer shall not direct the Account Holder to make any investment of any funds or to sell any investment held in any of the Designated Accounts unless the security interest granted and perfected in such account shall continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Account Holder to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) [Reserved]. (d) The Indenture Trustee, the Owner Trustee, the Securities Intermediary, the Account Holder and each other Eligible Institution with whom a Designated Account is maintained waives any right of set-off, counterclaim, security interest or bankers’ lien to which it might otherwise be entitled.

Appears in 1 contract

Samples: Servicing Agreement (Navistar Financial Corp)

Common use of Establishment of Accounts Clause in Contracts