Establishment of Collection Accounts. (a) Prior to the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 of the Credit and Security Agreement to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf of the Lender, shall establish and maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral Agent. (b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period. (c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effect. (d) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any of the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable to the Collateral Agent’s failure to comply with the applicable investment instructions pursuant to the terms of this Agreement or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor and not as Collateral Agent, in accordance with their terms. (e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested. (f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account. (g) With respect to the Trust Account Property, the Collateral Agent agrees that: (i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent shall have sole signature authority with respect thereto; (ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) of the definition of “Delivery” and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent; (iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York; (iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph; (v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and (vi) any cash shall be considered a “financial asset” under Article 8 of the UCC. (h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in error.
Appears in 20 contracts
Samples: Servicing Agreement, Servicing Agreement (ACAR Leasing Ltd.), Servicing Agreement (ACAR Leasing Ltd.)
Establishment of Collection Accounts. (a) Prior to (i) In accordance with the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 provisions of the Credit Operating Lease, Operating Company established and Security Agreement to a party other than AmeriCredit is currently maintaining (in its capacity as Servicer, as Lender or otherwise) and will maintain throughout the Collateral Agent, on behalf term of the Lender, shall establish and maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held Mortgage Loan) for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral Agent.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note SupplementMortgage Borrower, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effect.
(d) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any of the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable to the Collateral Agent’s failure to comply with the applicable investment instructions pursuant to the terms of this Agreement or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor and not as Collateral Agent, in accordance with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided hereinlessor under each Operating Lease, the Collection Accounts shall be under the sole dominion with Collection Banks and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
(i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” the rights of Mortgage Borrower (as landlord) under the Operating Lease have been collaterally assigned to Collateral Agent (as such term is defined in the definition Mortgage Loan Agreement (“Mortgage Loan Collateral Agent”)) (for the benefit of “Delivery” contained Mortgage Lender). All Revenues, other than amounts retained on-site by each Operating Company as a Gaming Operating Reserve and amounts collected and maintained in Annex A hereto) Off-Shore Accounts, shall be delivered to deposited in the Collateral Agent in accordance with paragraph Collection Accounts (i) of the definition of “Delivery” and shall be held, pending maturity whether by Operating Company or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (ivManager), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(hb) The Servicer Borrower hereby represents and warrants as follows: the Collection Accounts and the Borrower Deposit Account are the only accounts maintained by Operating Company or Mortgage Borrower in any jurisdiction that include funds arising out of, or are otherwise attributable to, the Properties or relate to the operation and management of any of the Properties other than accounts (collectively, the “OC Accounts”) that contain amounts theretofore released from Collection Accounts in accordance herewith, and other than Off-Shore Accounts, which shall have not be subject to this Agreement); and, other than the power Borrower Deposit Account, none of Borrower, Senior Mezzanine Borrower and/or Mortgage Borrower maintains any accounts that include funds arising out of, or are otherwise attributable to, any of the Properties or relate to instruct the Collateral Agent to make withdrawals operation and payments management of any of the Properties or otherwise (except for accounts containing funds released from the Collection Accounts as herein provided and the Off-Shore Accounts). Borrower shall not (and Borrower shall not permit Operating Company, Mortgage Borrower or Senior Mezzanine Borrower to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), open any accounts or new accounts or in any way alter the flow of funds and payment into the Borrower Deposit Account and/or the Collection Accounts, including, without limitation, changing the source, type or currency of any payments currently deposited and maintained in any such account (it being understood that the foregoing restriction shall not preclude Operating Company, Borrower, Senior Mezzanine Borrower or Mortgage Borrower from accepting and depositing in any Collection Accounts or Borrower Deposit Account any capital contributions, or any disbursements from any Collection Accounts or Borrower Deposit Account in accordance with the provisions of the Mortgage Loan Agreement, the Senior Mezzanine Loan Agreement and this Agreement). Borrower shall not (and Borrower shall not permit Senior Mezzanine Borrower, Operating Company or Mortgage Borrower to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), establish and maintain any accounts with financial institutions outside of the United States of America, other than the Off-Shore Accounts.
(c) Borrower shall cause Mortgage Borrower, Senior Mezzanine Borrower and Operating Company to comply with Section 2.6.1 of the Mortgage Loan Agreement and Senior Mezzanine Loan Agreement (as applicable) in all respects.
(d) Borrower hereby agrees that in the event that (i) the Mortgage Loan Documents require Mortgage Borrower and/or Operating Company to maintain the Collection Accounts, but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) the Collection Accounts are not being maintained and (ii) the Collection Accounts are not being maintained under the Senior Mezzanine Loan Agreement, Borrower shall establish or cause the Operating Company to establish collection accounts substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the provisions of Section 2.6.1 of the Mortgage Loan Documents, and grant to Collateral Agent (for the purpose benefit of permitting Lender) security interests in such accounts for the Servicer benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Borrower is required to deposit amounts with Lender pursuant to Article VII hereof but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) the Collection Accounts and Cash Management Account are not being maintained and the Collection Accounts are not being maintained under the Senior Mezzanine Loan Agreement, Borrower shall establish collection accounts and a cash management account and system with Lender substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the provisions of Sections 2.6.1 and 2.6.2 of the Mortgage Loan Documents, and grant to Collateral Agent (for the benefit of Lender) security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Mortgage Borrower is required to carry out its respective duties hereunderprovide security or other collateral to the Mortgage Lender pursuant to the terms of the Mortgage Loan Agreement (excluding any mortgage lien on the Properties or assignment of leases and rents with respect to the Properties) but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) such security or other collateral was not provided to Mortgage Lender, Borrower shall provide such security or other collateral to Lender in substantially the same form and amount as that required under the Credit Mortgage Loan Documents.
(e) Intentionally omitted.
(f) Rents under each Operating Lease are paid monthly in advance, on the dates set forth in each Operating Lease. Borrower shall reserve or shall cause Senior Mezzanine Borrower or Mortgage Borrower to reserve each month (and, each month, to retain in the Borrower Deposit Account from the first Rents paid and Security Agreement collected during each such month) an amount equal to the sum of the Mortgage Debt Service and the Mezzanine Debt Service due and payable under the Mezzanine Loan Agreements on the Payment Date occurring during each such month. Any such amounts on deposit in the Borrower Deposit Account shall be applied on each Payment Date (i) to the Mortgage Debt Service due on each such Payment Date and (ii) the Mezzanine Debt Service due on each such Payment Date (with the balance of any other agreements related thereto such amounts, if any, being disbursed to or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in erroras directed by Mortgage Borrower).
Appears in 4 contracts
Samples: Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Establishment of Collection Accounts. (a) Prior to In accordance with the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 provisions of the Credit Operating Lease, (i) Operating Company has established and Security Agreement to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf of the Lender, shall establish and will maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of Mortgage Borrower, as lessor under the Collateral Agent on behalf Operating Lease, the Collection Accounts with Collection Banks throughout the term of the Mortgage Loan and (ii) the rights of Mortgage Borrower (as landlord) under the Operating Lease have been collaterally assigned to Mortgage Lender. Prior to the establishment of such Lending Facility Collection AccountAll Revenues, all other than amounts required to retained on-site by each Operating Company as a Gaming Operating Reserve and amounts collected and maintained in Off-Shore Accounts, shall be deposited thereto shall instead be deposited with or at in the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral AgentAccounts.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection AccountBorrower hereby represents and warrants as follows: when established, funds on deposit in the Collection Accounts will be the only accounts maintained by Operating Company in any jurisdiction that include funds arising out of, or are otherwise attributable to, the Properties or relate to the operation and management of any of the Properties (other than accounts (collectively, the “OC Accounts”) that contain amounts theretofore released from Collection Accounts in accordance herewith, and other than Off-Shore Accounts, which shall not be invested by subject to this Agreement; and neither Borrower nor Mortgage Borrower maintains any accounts that include funds arising out of, or are otherwise attributable to, any of the Collateral Agent Properties or relate to the operation and management of any of the Properties or otherwise (except for accounts containing funds released from the Collection Accounts as herein provided and the Off-Shore Accounts). None of Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company may (and Borrower shall not permit Mortgage Borrower, Senior Mezzanine Borrower or Operating Company to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), open any custodian with respect to accounts or new accounts or in any way alter the flow of funds on deposit and payment into such Collection Accounts, including, without limitation, changing the source, type or currency of any payments currently deposited and maintained in any such account) account (it being understood that the foregoing restriction shall not preclude Operating Company, Mortgage Borrower, Senior Mezzanine Borrower or Borrower from accepting and depositing in Permitted Investments selected any Collection Accounts any capital contributions, or any disbursements from any Collection Accounts in writing by accordance with the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf provisions of the Collateral Agent for Mortgage Loan Agreement, this Agreement and the benefit Senior Mezzanine Loan Agreements. None of Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company may (and Borrower shall not permit Mortgage Borrower, Senior Mezzanine Borrower, or Operating Company to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), establish and maintain any accounts with financial institutions outside of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at United States of America, other than the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such periodOff-Shore Accounts).
(c) All Investment Earnings Borrower shall cause Mortgage Borrower, Senior Mezzanine Borrower and Operating Company to comply with Section 2.6.1 of moneys deposited in each Collection Account shall be deposited the Mortgage Loan Agreement and Senior Mezzanine Loan Agreement (or caused to be depositedas applicable) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effectall respects.
(d) The Collateral Agent shall not Borrower hereby agrees that in any way be held liable the event that (i) the Mortgage Loan Documents require Mortgage Borrower and/or Operating Company to maintain the Collection Accounts, but (due to repayment of the Mortgage Loan, waiver of the requirement by reason of any insufficiency in any of Mortgage Lender, or otherwise) the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable are not being maintained and (ii) the Collection Accounts are not being maintained under Section 2.6.1(d) of the Senior Mezzanine Loan Agreement, Borrower shall establish or cause the Operating Company to establish or cause the Collateral Agent’s failure Operating Company to establish collection accounts substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the applicable investment instructions provisions of Section 2.6.1 of the Mortgage Loan Documents, and grant to Lender security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Borrower is required to deposit amounts with Lender pursuant to Article VII hereof but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) the Collection Accounts and Cash Management Account are not being maintained, Borrower shall establish collection accounts and a cash management account and system with Lender substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the provisions of Sections 2.6.1 and 2.6.2 of the Mortgage Loan Documents, and grant to Lender security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Mortgage Borrower is required to provide security or other collateral to the Mortgage Lender pursuant to the terms of this the Mortgage Loan Agreement (excluding any mortgage lien on the Properties or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor assignment of leases and not as Collateral Agent, in accordance rents with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
Properties) but (i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject due to the exclusive custody and control repayment of the Collateral AgentMortgage Loan, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) waiver of the definition of “Delivery” requirement by Mortgage Lender, or otherwise) such security or other collateral was not provided to Mortgage Lender, Borrower shall provide such security or other collateral to Lender in substantially the same form and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (amount as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, required under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in errorMortgage Loan Documents.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Establishment of Collection Accounts. (a) Prior to the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 of the Credit and Security Agreement to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf of the Lender, shall establish and maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral Agent.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effect.
(d) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any of the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable to the Collateral Agent’s failure to comply with the applicable investment instructions pursuant to the terms of this Agreement negligence or bad faith or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor and not as Collateral Agenttrustee, in accordance with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day or (ii) a Lending Facility Default or Exchange Note Default shall have occurred and is continuing, then the Collateral Agent shall, to the fullest extent practicable, invest and reinvest funds in the related Collection Accounts with respect to which such Collection Account will be invested default has occurred in accordance with the investment direction most recently provided by described in clause (d) of the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univesteddefinition of Permitted Investments.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
(i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) of the definition of “Delivery” and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not no constitute Collections for any Collection Period that were deposited in error.
Appears in 2 contracts
Samples: Servicing Agreement (ACAR Leasing Ltd.), Servicing Agreement (ACAR Leasing Ltd.)
Establishment of Collection Accounts. (a) Prior to In accordance with the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 provisions of the Credit Operating Lease, (i) Operating Company has established and Security Agreement to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf of the Lender, shall establish and will maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of Mortgage Borrower, as lessor under the Collateral Agent on behalf Operating Lease, the Collection Accounts with Collection Banks throughout the term of the Mortgage Loan and (ii) the rights of Mortgage Borrower (as landlord) under the Operating Lease have been collaterally assigned to Mortgage Lender. Prior to the establishment of such Lending Facility Collection AccountAll Revenues, all other than amounts required to retained on-site by each Operating Company as a Gaming Operating Reserve and amounts collected and maintained in Off-Shore Accounts, shall be deposited thereto shall instead be deposited with or at in the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral AgentAccounts.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection AccountBorrower hereby represents and warrants as follows: when established, funds on deposit in the Collection Accounts will be the only accounts maintained by Operating Company in any jurisdiction that include funds arising out of, or are otherwise attributable to, the Properties or relate to the operation and management of any of the Properties other than accounts (collectively, the “OC Accounts”) that contain amounts theretofore released from Collection Accounts in accordance herewith, and other than Off-Shore Accounts, which shall not be invested by subject to this Agreement; and neither Borrower nor Mortgage Borrower maintains any accounts that include funds arising out of, or are otherwise attributable to, any of the Collateral Agent Properties or relate to the operation and management of any of the Properties or otherwise (except for accounts containing funds released from the Collection Accounts as herein provided and the Off-Shore Accounts). None of Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company may (and Borrower shall not permit Mortgage Borrower, Senior Mezzanine Borrower or Operating Company to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), open any custodian with respect to accounts or new accounts or in any way alter the flow of funds on deposit and payment into such Collection Accounts, including, without limitation, changing the source, type or currency of any payments currently deposited and maintained in any such account) account (it being understood that the foregoing restriction shall not preclude Operating Company, Mortgage Borrower, Senior Mezzanine Borrower or Borrower from accepting and depositing in Permitted Investments selected any Collection Accounts any capital contributions, or any disbursements from any Collection Accounts in writing by accordance with the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf provisions of the Collateral Agent for Mortgage Loan Agreement, this Agreement and the benefit Senior Mezzanine Loan Agreements. None of Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company may (and Borrower shall not permit Mortgage Borrower, Senior Mezzanine Borrower, or Operating Company to), without the prior consent of Lender (not to be unreasonably withheld, conditioned or delayed), establish and maintain any accounts with financial institutions outside of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at United States of America, other than the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such periodOff-Shore Accounts.
(c) All Investment Earnings Borrower shall cause Mortgage Borrower, Senior Mezzanine Borrower and Operating Company to comply with Section 2.6.1 of moneys deposited in each Collection Account shall be deposited the Mortgage Loan Agreement and Senior Mezzanine Loan Agreement (or caused to be depositedas applicable) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effectall respects.
(d) The Collateral Agent shall not Borrower hereby agrees that in any way be held liable the event that (i) the Mortgage Loan Documents require Mortgage Borrower and/or Operating Company to maintain the Collection Accounts, but (due to repayment of the Mortgage Loan, waiver of the requirement by reason of any insufficiency in any of Mortgage Lender, or otherwise) the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable are not being maintained and (ii) the Collection Accounts are not being maintained under Section 2.6.1(d) of the Senior Mezzanine Loan Agreement, Borrower shall establish or cause the Operating Company to establish or cause the Collateral Agent’s failure Operating Company to establish collection accounts substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the applicable investment instructions provisions of Section 2.6.1 of the Mortgage Loan Documents, and grant to Lender security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Borrower is required to deposit amounts with Lender pursuant to Article VII hereof but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) the Collection Accounts and Cash Management Account are not being maintained, Borrower shall establish collection accounts and a cash management account and system with Lender substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the provisions of Sections 2.6.1 and 2.6.2 of the Mortgage Loan Documents, and grant to Lender security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender). In addition, if Mortgage Borrower is required to provide security or other collateral to the Mortgage Lender pursuant to the terms of this the Mortgage Loan Agreement (excluding any mortgage lien on the Properties or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor assignment of leases and not as Collateral Agent, in accordance rents with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
Properties) but (i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject due to the exclusive custody and control repayment of the Collateral AgentMortgage Loan, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) waiver of the definition of “Delivery” requirement by Mortgage Lender, or otherwise) such security or other collateral was not provided to Mortgage Lender, Borrower shall provide such security or other collateral to Lender in substantially the same form and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (amount as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, required under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in errorMortgage Loan Documents.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Establishment of Collection Accounts. (a) Prior to the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 of the Credit and Security Agreement to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the The Collateral Agent, on behalf of the Lender, shall establish has established and maintain maintains in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be an Eligible Deposit Account established with the Collateral Agentan Eligible Institution.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effect.
(d) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any of the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable to the Collateral Agent’s failure to comply with the applicable investment instructions pursuant to the terms of this Agreement or its failure to make payments on such Permitted Investments issued by the Collateral Agent, in its commercial capacity as principal obligor and not as Collateral Agent, in accordance with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust EstateEstate and the Collateral Agent shall be the only Person authorized to originate entitlement orders in respect of the Collection Accounts. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with maintained in the name of the Collateral AgentAgent at an Eligible Institution, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) The Collateral Agent or Person holding the Collection Accounts shall be the “Securities Intermediary” with respect to the Collection Accounts. If the Securities Intermediary in respect of the Collection Accounts is not the Collateral Agent, the Collateral Agent shall obtain the express written agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 3.1(g) and the Collateral Agent shall provide a copy of such agreement to the Servicer. With respect to the Collection Accounts and the Trust Account Property, the Collateral Agent Securities Intermediary agrees that:
(i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) of the definition of “Delivery” and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in error.
(i) Except as otherwise set forth in this Section 3.1, if the Collateral Agent transfers any Collection Account to another Eligible Institution, it shall provide no less than sixty (60) days prior written notice to GM Financial and shall consult with GM Financial no less than sixty (60) days in advance of any change in who shall be such Eligible Institution.
Appears in 1 contract
Establishment of Collection Accounts. (a) Prior On or prior to the first Payment Date on which amounts will be due date hereof, the Borrower has and payable pursuant has caused each of its Subsidiaries to Section 10.2 enter into and the Borrower shall and shall cause each of its Subsidiaries thereafter to maintain cash collection account arrangements 49 and/or similar arrangements for the Credit and Security Agreement to a party other than AmeriCredit (concentration of their collection of Receivables included in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf and other proceeds of the Lender, shall establish and maintain in its own name an Eligible Deposit Account (the “Lending Facility Collateral into one or more Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral Agent.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investmentAccounts, in either case without any further action by any Person, and, in connection with any direction to the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, form and substance reasonably acceptable to the Collateral Agent, and in connection with such arrangements, the Borrower shall have entered into and shall thereafter maintain and shall cause its Subsidiaries to enter into and thereafter maintain in effect Collection Account Agreements for each of such effect.
Collection Accounts. Notwithstanding the foregoing, the Borrower and its Subsidiaries shall be permitted to maintain deposit accounts for the collection of Receivables which consist of minimum balance accounts subject to established arrangements pursuant to which the amounts on deposit in such accounts (dother than a minimum balance of up to $5,000 per account which is permitted to remain therein) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any of the Collection Accounts resulting from any loss are automatically transferred (on any Permitted Investment included therein except for losses attributable a periodic basis acceptable to the Collateral Agent’s failure ) to comply with concentration accounts which are Collection Accounts and subject to a Collection Account Agreement (the applicable investment instructions pursuant "Permitted Sweep Accounts"). On or prior to the terms of this Agreement or date hereof, the Borrower has and has caused its failure Subsidiaries to make put in place arrangements so that their account debtors directly remit all payments on such accounts receivable to the Collection Accounts or Permitted Investments issued Sweep Accounts. Any collections received by the Collateral Agent, in its commercial capacity as principal obligor Borrower or any Subsidiary and not as Collateral Agent, in accordance with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit deposited in the Collection Accounts or Permitted Sweep Accounts, shall be deemed to have been received by the Borrower or such Subsidiary as the Collateral Agent's trustee and, upon the receipt thereof, the Borrower or shall transfer or cause the Subsidiary, as applicable, to transfer promptly all such amounts into a Collection Account or Permitted Sweep Account in their original form. All deposits in any Collection Account shall be remitted to the Borrower, its Subsidiaries, the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as the Collateral Agent may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested direct, all in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit of the related Secured Parties and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for the benefit of the related Secured Parties. If, at any time, any provisions of the Collection Accounts ceases to be an Eligible Deposit Account, the Collateral Agent (or the Servicer on its behalf) shall within five (5) Business Days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit AccountAgreements.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
(i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) of the definition of “Delivery” and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (iv), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in error.
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Establishment of Collection Accounts. (a1) Prior to the first Payment Date on which amounts will be due and payable pursuant to Section 10.2 of the Credit and Security Agreement Pursuant to a party other than AmeriCredit (in its capacity as Servicer, as Lender or otherwise) the Collateral Agent, on behalf of the Lender, shall establish and maintain in its own name an Eligible Deposit Account (the “Lending Facility Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Collateral Agent on behalf of the Lender. Prior to the establishment of such Lending Facility Collection Account, all amounts required to be deposited thereto shall instead be deposited with or at the direction of the Servicer, for further application by the Servicer in accordance with the terms hereof. The Collateral Agent will also establish an Exchange Note Collection Account pursuant to each Servicing Supplement that will relate to the related Designated Pool and Exchange Note. Each Collection Account shall initially be established with the Collateral Agent.
(b) Unless otherwise specified in the related Servicing Supplement with respect to an Exchange Note Collection Account, funds on deposit in the Collection Accounts shall be invested by the Collateral Agent (or any custodian with respect to funds on deposit in any such account) in Permitted Investments selected in writing by the Servicer (pursuant to standing instructions or otherwise). All such Permitted Investments shall be held by or on behalf of the Collateral Agent for the benefit of the related Secured Party. Funds on deposit in any Trust Account shall be invested in Permitted Investments that will mature so that such funds will be available at the close of business on the Business Day immediately preceding the following Payment Date. All Permitted Investments will be held to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Collateral Agent’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Collateral Trustee hereunder, and the Collateral Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(c) All Investment Earnings of moneys deposited in each Collection Account shall be deposited (or caused to be deposited) in such Collection Account by 10:00 a.m. on each Payment Date by the Collateral Agent and applied in the manner set forth in the Credit and Security Agreement or related Exchange Note Supplement, as applicable, and any loss resulting from such investments shall be charged to such Collection Account. The Servicer will not direct the Collateral Agent to make any investment of any funds held in any of the Collection Accounts unless the security interest granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person, and, executed in connection with any direction to each Series of Bonds, there shall be established and there shall be maintained for such Series of Bonds a Primary Collection Account and a Secondary Collection Account in the Collateral Agent to make any such investment, if requested by the Collateral Agent, the Servicer shall deliver to the Collateral Agent an Opinion of Counsel, acceptable to the Collateral Agent, to such effect.
(d) The Collateral Agent shall not in any way be held liable by reason of any insufficiency in any name of the Collection Accounts resulting from any loss on any Permitted Investment included therein except for losses attributable Indenture Trustee until the Principal Amount of the Bonds of such Series has been reduced to the Collateral Agent’s failure to comply with the applicable investment instructions pursuant to the terms of this Agreement or its failure to make payments on such Permitted Investments issued by the Collateral Agentzero, in its commercial capacity as principal obligor and not as Collateral Agent, in accordance with their terms.
(e) If (i) the Servicer shall have failed to give investment directions in writing for any funds on deposit thereafter in the Collection Accounts to the Collateral Agent by 1:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Collateral Agent) on any Business Day the funds in such Collection Account will be invested in accordance with the investment direction most recently provided by the Servicer; provided, that, if no investment direction has been provided by the Servicer by such date, the funds in such Collection Account will be held univested.
(f) The Collateral Agent shall possess all right, title and interest in all funds on deposit from time to time in the Collection Accounts and in all proceeds thereof for the benefit name of the related Secured Parties and all such funds, investments, proceeds and income shall be part Issuer. Each of the Trust Estate. Except as otherwise provided herein, the Collection Accounts shall be under the sole dominion and control of the Collateral Agent for Indenture Trustee until the benefit Principal Amount of the Bonds of such Series has been reduced to zero, and thereafter under the dominion and control of the Issuer; provided, that the related Secured Parties. IfMaster Servicer may make deposits to, at any timeand make withdrawals from, any either of the Collection Accounts in accordance with the related Servicing Agreement, this Indenture and, if applicable, the related Supplemental Indenture. All deposits to and withdrawals from the Collection Accounts shall be made only upon the terms and conditions of the related Transaction Documents.
(2) Any amounts on deposit in the Collection Accounts shall be invested as provided in such Servicing Agreements until the Principal Amount of the Bonds of each Series has been reduced to zero, and thereafter by the Issuer, only in Permitted Investments. No such investment shall be sold prior to maturity. All investment earnings on amounts deposited to either of the Collection Accounts, including any proceeds thereof, shall be credited to such Collection Account, and losses, if any, and investment expenses resulting from Permitted Investments in either of the Collection Accounts shall be charged to such Collection Account. All such investment income shall be reported for federal income tax purposes as earned by the Issuer. The authority of the applicable Master Servicer to make deposits to and withdrawals from each of the Collection Accounts is revocable at any time by the Indenture Trustee until the Principal Amount of the Senior Bonds has been reduced to zero, and thereafter by the Owner Trustee. If any Collection Account ceases to be an Eligible Deposit Account, then the Collateral Agent (or applicable Master Servicer shall be required under the Servicer on its behalf) shall related Master Servicing Agreement to re-establish such Collection Account as an Eligible Account within five (5) 10 Business Days (or such longer period not to exceed 30 calendar days as to which the a Rating Agencies rating any securities backed by the related Exchange Note, if any, may consent) establish a new Collection Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account. In connection with the foregoing, the Servicer agrees that, in the event that any of the Collection Accounts are not accounts with the Collateral Agent, the Servicer shall notify the Collateral Agent in writing promptly upon any of such Collection Accounts ceasing to be an Eligible Deposit Account.
(g) With respect to the Trust Account Property, the Collateral Agent agrees that:
(i) any Trust Account Property that is held in deposit accounts shall be held solely in the Eligible Deposit Accounts; and, except as otherwise provided herein, each such Eligible Deposit Account shall be subject to the exclusive custody and control of the Collateral Agent, and the Collateral Agent Agency Confirmation shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes “physical property” (as such term is defined in the definition of “Delivery” contained in Annex A hereto) shall be delivered to the Collateral Agent in accordance with paragraph (i) of the definition of “Delivery” and shall be held, pending maturity or disposition, solely by the Collateral Agent or a securities intermediary (as such term is defined in Section 8-102(14) of the UCC) acting solely for the Collateral Agent;
(iii) the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC shall be the State of New York;
(iv) any 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 Collateral Agent, pending maturity or disposition, through continued book-entry registration of such Trust Account Property as described in such paragraph;
(v) any Trust Account Property that is an “uncertificated security” or a “security entitlement” under Article 8 of the UCC and that is not governed by clause (4) above shall be delivered to the Collateral Agent in accordance with paragraph (iii) or (ivbeen received), if applicable, of the definition of “Delivery” and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent’s (or its nominee’s) ownership of such security; and
(vi) any cash shall be considered a “financial asset” under Article 8 of the UCC.
(h) The Servicer shall have the power to instruct the Collateral Agent to make withdrawals and payments from the Collection Accounts for the purpose of permitting the Servicer and the Collateral Agent to carry out its respective duties hereunder, under the Credit and Security Agreement and under any other agreements related thereto or to withdraw amounts that do not constitute Collections for any Collection Period that were deposited in error.
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Samples: Indenture (Istar Financial Inc)
