Facility Termination Events. Any of the following acts or occurrences shall constitute a Facility Termination Event under this Servicing Agreement (each a “Facility Termination Event”): (a) The Servicer shall fail to deliver to the Collateral Agent any Asset Proceeds received by the Servicer as and when required in accordance with this Servicing Agreement or the Credit Agreement, or the Servicer shall fail to pay to the Lender any payment in the amount and on the date required to be made in accordance with this Servicing Agreement and either such failure is a result of Bad Faith on the part of the Servicer or any Affiliated Party; (b) The Servicer shall fail to observe or perform in any respect any covenant or agreement required to be performed thereby under this Servicing Agreement or under any other Loan Document to which the Servicer is a party and such failure is a result of Bad Faith on the part of the Servicer or any Affiliated Party; provided, that, any failure to perform its obligations under Section 5.2(d) on an arms-length basis or any failure to perform its obligations under Section 5.2(h) shall constitute Bad Faith; (c) Any representation, warranty or statement of the Servicer made in this Servicing Agreement, or in any certificate, report or other statement, in writing or orally, delivered to any party hereto and pursuant hereto or thereto, shall prove to be incorrect in any material respect as of the date made and such incorrect representation, warranty or statement is a result of Bad Faith on the part of the Servicer or any Affiliated Party; (d) The Servicer shall make an assignment for the benefit of creditors; or the Servicer shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or the consent of the Servicer (with respect to an action against the Servicer); or the Servicer shall institute (by petition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer; or any judgment, writ, warrant of attachment or execution for similar process shall be issued or levied against a substantial part of the property of the Servicer; (e) a petition naming the Servicer as debtor is filed under the United States Bankruptcy Code, and, if such a petition is involuntarily filed against the Servicer by a Person or Persons other than the Servicer (in case of a petition filed with respect to the Servicer) and such petition is not dismissed within sixty (60) days of such filing; (f) The Credit Agreement shall be terminated or a Facility Event of Default shall occur under the Credit Agreement; (g) The Servicer accepts or receives, or agrees to accept or receive, any rebate, refund, commission, fee (other than the Servicing Fee), kickback or rakeoff, whether cash or otherwise and whether paid by or originating with the Obligor, any subservicer or any other party (including but not limited to brokers and agents), as a result of or in any way in connection with collection activities related to any Asset or in connection with the sale, disposition, transfer or servicing of any Asset; (h) The Servicer shall (i) liquidate, (ii) dissolve, (iii) terminate or suspend its business operations or otherwise fail to operate its business in the ordinary course for a period of more than fourteen (14) days, or (iv) shall sell all or substantially all of its assets, without the prior written consent of the Lender; (i) The Servicer shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax or tax deficiency for which nonpayment thereof will not result in a Material Adverse Effect or for which the Borrower is conducting a Permitted Contest); (j) A default under any note, agreement or other evidence of indebtedness or similar obligation of the Servicer other than a default whose breach is elsewhere in this Section 6.1 or this Section 6.2 specifically dealt with) or under any instrument under which such evidence of indebtedness or similar obligation has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified in such evidence of indebtedness or other instrument and the same shall cause a Material Adverse Effect under this Agreement or a Material Adverse Effect (as defined in the Credit Agreement); (k) a Change of Control shall occur; or (l) any of the following shall occur: (i) entry of a court order which enjoins, restrains or in any way prevents the Servicer from conducting all or any material part of its business affairs in the ordinary course of any material part of the business of the Servicer and such order or writ is not dismissed within sixty (60) days, or (ii) withdrawal or suspension of any license required for the conduct of any material part of the business of the Servicer.
Appears in 2 contracts
Sources: Servicing Agreement (West Corp), Servicing Agreement (West Corp)
Facility Termination Events. Any If any of the following acts or occurrences shall constitute a Facility Termination Event under this Servicing Agreement events (each a “Facility Termination Event”):) shall occur and be continuing:
(a) The Servicer any Facility Party shall fail to deliver to the Collateral Agent any Asset Proceeds received by the Servicer as and when required in accordance with this Servicing Agreement or the Credit Agreement, or the Servicer shall fail to pay to the Lender make any payment in the amount and on the date or deposit required to be made in accordance with this Servicing Agreement by it hereunder or under any other Transaction Document to which it is a party when due hereunder or thereunder and either such failure is remains unremedied for two (2) Business Days from the earlier to occur of (i) the date upon which a result Responsible Offer of Bad Faith such Facility Party obtains knowledge of such failure or (ii) the date on which written notice of such failure, requiring the part of same to be remedied, shall have been given to such Facility Party by the Servicer Administrative Agent or any Affiliated PartyPurchaser Agent;
(b) The Servicer any representation, warranty, certification or statement made by any Facility Party in this Agreement or any other Transaction Document to which such Facility Party is a party shall fail prove to observe or perform have been incorrect in any material respect when made or deemed made (other than any covenant breach of a representation, warranty, certification or agreement statement solely relating to a Portfolio Receivable for which the entire Deemed Collection amount required to be performed thereby paid under this Servicing Agreement or under any other Loan Document to which the Servicer is a party applicable Specified Deemed Collection Section has been paid) and such failure Facility Party shall have failed to remedy such circumstances in a manner such that such representation, warranty, certification or statement is true and correct in all material respects within thirty (30) days after a result Responsible Officer of Bad Faith on the part of the Servicer such Facility Party obtained knowledge or any Affiliated Party; provided, that, any failure to perform its obligations under Section 5.2(d) on an arms-length basis or any failure to perform its obligations under Section 5.2(h) shall constitute Bad Faithreceived notice thereof;
(c) Any representationother than as addressed in Section 7.1(a), warranty any Facility Party shall fail to perform or statement of the Servicer made observe any term, covenant or agreement contained in this Servicing Agreement, Agreement or in any certificate, report or other statement, in writing or orally, delivered Transaction Document to any which such Facility Party is a party hereto and pursuant hereto or thereto, shall prove to be incorrect in any material respect as of the date made and such incorrect representation, warranty Facility Party shall have failed to remedy such failure within thirty (30) days after a Responsible Officer of such Facility Party obtained knowledge or statement is a result of Bad Faith on the part of the Servicer or any Affiliated Partyreceived notice thereof;
(d) The Servicer shall make an assignment for the benefit of creditors; or the Servicer shall apply for or consent to the appointment of ▇▇▇▇▇ Limited, any receiver, trustee, or similar officer for it or for all Investor Certificateholder or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or the consent of the Servicer (with respect to an action against the Servicer); or the Servicer shall institute (by petition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer; or any judgment, writ, warrant of attachment or execution for similar process shall be issued or levied against a substantial part of the property of the Servicer;
(e) a petition naming the Servicer as debtor is filed under the United States Bankruptcy Code, and, if such a petition is involuntarily filed against the Servicer by a Person or Persons other than the Servicer (in case of a petition filed with respect to the Servicer) and such petition is not dismissed within sixty (60) days of such filing;
(f) The Credit Agreement shall be terminated or a Facility Event of Default shall occur under the Credit Agreement;
(g) The Servicer accepts or receives, or agrees to accept or receive, any rebate, refund, commission, fee (other than the Servicing Fee), kickback or rakeoff, whether cash or otherwise and whether paid by or originating with the Obligor, any subservicer or any other party (including but not limited to brokers and agents), as a result of or in any way in connection with collection activities related to any Asset or in connection with the sale, disposition, transfer or servicing of any Asset;
(h) The Servicer Designated Master Trust Obligor shall (i) liquidate, default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with respect thereto; (ii) dissolve, (iii) terminate or suspend its business operations or otherwise fail to operate its business default in making any payment of any interest on any such Indebtedness beyond the ordinary course for a period of more than fourteen (14) days, or (iv) shall sell all or substantially all of its assets, without the prior written consent of the Lender;
(i) The Servicer shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax or tax deficiency for which nonpayment thereof will not result in a Material Adverse Effect or for which the Borrower is conducting a Permitted Contest);
(j) A default under any note, agreement or other evidence of indebtedness or similar obligation of the Servicer other than a default whose breach is elsewhere in this Section 6.1 or this Section 6.2 specifically dealt with) or under any instrument under which such evidence of indebtedness or similar obligation has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified provided in the instrument or agreement under which such evidence Indebtedness was created; or (iii) default in the observance or performance of indebtedness any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other instrument and event or condition is to cause, or to permit the same shall cause a Material Adverse Effect under this Agreement holder or beneficiary of such Indebtedness (or a Material Adverse Effect trustee or agent on behalf of such holder or beneficiary) to cause, with giving of notice if required, such Indebtedness to become due prior to its stated maturity or (as defined in the Credit Agreementcase of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided that (A) a default, event or condition described in clause (i), (ii) or (iii) above shall not at any time constitute a Facility Termination Event unless, at such time, one or more defaults, events or conditions of the type described in clauses (i) through (iii) above shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which together exceeds in the aggregate $100,000,000 or the Dollar Equivalent thereof in any other currency; and (B) clause (iii) shall be deemed inapplicable if the occurrence of such event or condition referred to above gives rise to an obligation to make mandatory prepayment without further demand of any Person on terms agreed prior to the occurrence of such event or condition;
(e) an Event of Bankruptcy shall occur with respect to any Transaction Party;
(f) the Administrative Agent, on behalf of the Secured Parties, shall, for any reason, fail or cease to have a valid and perfected first priority charge, security interest or pledge in the Collateral prior to all other interests;
(g) a Servicer Default shall occur and be continuing;
(h) any Change of Control shall occur;
(i) the Aggregate Invested Amount exceeds the Funding Base as determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement and such circumstance remains unremedied for two (2) Business Days;
(j) the failure by any Transaction Party to pay one or more final judgments requiring that Transaction Party to pay a sum or sums of money aggregating in excess of $100,000,000 or the Dollar Equivalent thereof in any other currency, which judgments are not discharged or effectively vacated, discharged, bonded, waived or stayed (including by appeal within thirty (30) days from entry thereof) for a period of thirty (30) consecutive days (unless fully covered by insurance as to which the relevant insurance company has acknowledged coverage), or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any such Transaction Party to enforce any such judgment;
(k) the failure by the Seller to pay one or more final judgments requiring the Seller to pay a Change sum or sums of Control money aggregating in excess of $50,000 or the Dollar Equivalent thereof in any other currency which judgments are not discharged or effectively waived or stayed (including by appeal provided that the Seller is not required to make any payment or payments in respect of such judgment pending appeal) for a period of thirty (30) consecutive days, or any action shall occurbe legally taken by a judgment creditor to levy upon assets or properties of the Seller to enforce any such judgment;
(l) except in the case of a termination expressly permitted under Section 11.14 (Limitation on the addition and termination of Originators), any Transaction Document or any material provision thereof shall cease, for any reason, to be in full force and effect, or any Transaction Party shall so assert in writing or any Transaction Party shall otherwise seek to terminate or disaffirm its material obligations under any such Transaction Document;
(m) the Subordinated Lender fails for any reason (including as the result of the failure to meet any condition precedent) to make a Subordinated Loan under the Subordinated Loan Agreement following delivery by the Seller of a Subordinated Loan Investment Request and such failure remains unremedied for two (2) Business Days; or
(ln) an “Event of Default” occurs under and as defined in the Subordinated Loan Agreement and the Subordinated Lender’s commitment to make further Subordinated Loans thereunder shall be cancelled. then, and in any such event, the Administrative Agent shall, at the direction of the following Majority Committed Purchasers, declare the Facility Termination Date to have occurred upon notice to the Seller (in which case the Facility Termination Date shall be deemed to have occurred); provided that automatically upon the occurrence of any event (without any requirement for the giving of notice) described in Section 7.1(e), the Facility Termination Date shall occur: . Upon any such declaration or upon such automatic termination, the Purchasers, the Purchaser Agents and the Administrative Agent shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under applicable Law, which rights and remedies shall be cumulative. Each Committed Purchaser agrees to provide written notice to the Administrative Agent within three (i3) entry Business Days of receipt of notice of the occurrence of a court order which enjoinsFacility Termination Event or Portfolio Event of both (1) whether it desires to declare the Facility Termination Date and (2) whether it desires to waive such Facility Termination Event or Portfolio Event; provided, restrains that any failure to respond shall be deemed to be (x) a decision not to declare the Facility Termination Date (although any such decision not to declare may be switched to a decision to declare the Facility Termination Date at any time thereafter in such Committed Purchaser’s discretion) and (y) a decision not to waive such Facility Termination Event or in any way prevents the Servicer from conducting all or any material part of its business affairs in the ordinary course of any material part of the business of the Servicer and such order or writ is not dismissed within sixty (60) days, or (ii) withdrawal or suspension of any license required for the conduct of any material part of the business of the ServicerPortfolio Event.
Appears in 1 contract
Sources: Securitization Agreement (Bunge LTD)
Facility Termination Events. Any If any of the following acts or occurrences shall constitute a Facility Termination Event under this Servicing Agreement events (each each, a “Facility Termination Event”):) shall occur and be continuing:
(a) The Servicer shall fail to deliver to the Collateral Agent any Asset Proceeds received representation, warranty, certification or statement made by the Servicer as and when required any Transaction Party in accordance with this Servicing Agreement or the Credit Agreement, or the Servicer shall fail any other Transaction Document to pay to the Lender any payment in the amount and on the date required to be made in accordance with this Servicing Agreement and either which such failure Transaction Party is a result party shall prove to have been incorrect in any material respect when made or deemed made; provided that if such breach relates to a Specified Provision and is capable of Bad Faith on being cured, such breach shall not constitute a Facility Termination Event unless it continues unremedied for five (5) Business Days after the part earlier of the Servicer a Transaction Party receiving written notice of such breach or any Affiliated Partya Responsible Officer of a Transaction Party having actual knowledge of such breach;
(b) The Servicer an Event of Bankruptcy shall fail occur with respect to observe or perform in any respect any covenant or agreement required to be performed thereby under this Servicing Agreement or under any other Loan Document to which the Servicer is a party and such failure is a result of Bad Faith on the part of the Servicer or any Affiliated Transaction Party; provided, that, any failure to perform its obligations under Section 5.2(d) on an arms-length basis or any failure to perform its obligations under Section 5.2(h) shall constitute Bad Faith;or
(c) Any representation, warranty or statement of the Servicer made in this Servicing Agreement, or in (i) any certificate, report or other statement, in writing or orally, delivered to any party hereto and pursuant hereto or thereto, shall prove to be incorrect in any material respect as of the date made and such incorrect representation, warranty or statement is a result of Bad Faith on the part of the Servicer or any Affiliated Party;
(d) The Servicer shall make an assignment for the benefit of creditors; or the Servicer shall apply for or consent to the appointment Material Indebtedness of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or the consent of the Servicer (with respect to an action against the Servicer); or the Servicer shall institute (by petition, application, answer, consent or otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Servicer; or any judgment, writ, warrant of attachment or execution for similar process shall be issued or levied against a substantial part of the property of the Servicer;
(e) a petition naming the Servicer as debtor is filed under the United States Bankruptcy Code, and, if such a petition is involuntarily filed against the Servicer by a Person or Persons other than the Servicer (in case of a petition filed with respect to the Servicer) and such petition Transaction Party is not dismissed within sixty (60) days of such filing;
(f) The Credit Agreement shall be terminated paid when due or a Facility Event of Default shall occur under the Credit Agreement;
(g) The Servicer accepts or receives, or agrees to accept or receive, any rebate, refund, commission, fee (other than the Servicing Fee), kickback or rakeoff, whether cash is declared or otherwise and whether paid by or originating with the Obligor, any subservicer or any other party (including but not limited becomes due prior to brokers and agents), its scheduled maturity as a result of or in any way in connection with collection activities related to any Asset or in connection with the saletermination event, disposition, transfer or servicing event of any Asset;
(h) The Servicer shall (i) liquidate, (ii) dissolve, (iii) terminate or suspend its business operations or otherwise fail to operate its business in the ordinary course for a period of more than fourteen (14) days, or (iv) shall sell all or substantially all of its assets, without the prior written consent of the Lender;
(i) The Servicer shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax or tax deficiency for which nonpayment thereof will not result in a Material Adverse Effect or for which the Borrower is conducting a Permitted Contest);
(j) A default under any note, agreement or other evidence of indebtedness or similar obligation of the Servicer other than a default whose breach is elsewhere in this Section 6.1 or this Section 6.2 specifically dealt with) or under any instrument under which such evidence of indebtedness or similar obligation has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified in such evidence of indebtedness or other instrument and the same shall cause a Material Adverse Effect under this Agreement or a Material Adverse Effect event (as defined in the Credit Agreementhowever described);
(k) a Change of Control shall occur; or
(l) any of the following shall occur: (i) entry of a court order which enjoins, restrains or in any way prevents the Servicer from conducting all or any material part of its business affairs in the ordinary course of any material part of the business of the Servicer and such order or writ is not dismissed within sixty (60) days, or (ii) withdrawal any pledge, charge or suspension security interest securing the Material Indebtedness of any license required Transaction Party is enforced in whole or in part as a result of any termination event, event of default or other similar event (however described); then, and in any such event, the Administrative Agent may, in its discretion, and shall, at the direction of the Required Funding Agents, declare the Facility Termination Date to have occurred upon notice to the Borrower (in which case the Facility Termination Date shall be deemed to have occurred); provided that automatically upon the occurrence of any event (without any requirement for the conduct giving of notice) described in Clause 7.2(b), the Facility Termination Date shall occur. Upon any material part of such declaration or upon such automatic termination, the business of Lenders, the ServicerFunding Agents and the Administrative Agent shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under applicable Law (including the UCC), which rights and remedies shall be cumulative.
Appears in 1 contract