Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note): (i) within 120 days after the end of each fiscal year of each Reported Company, a copy of such Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; (ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and (iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review the (iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company; (v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto; (vi) promptly upon the Servicer's becoming aware of: (A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or (B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
Appears in 2 contracts
Samples: Servicing Agreement (Trendwest Resorts Inc), Servicing Agreement (Trendwest Resorts Inc)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the Indenture Trustee, the Placement Agents Agent, MBIA, the Back-up Servicer, the Rating Agencies and to each Holder Noteholder of Outstanding Notes (and, upon the request of any Noteholder, to any prospective transferee of any Note):), provided, however, that if the initial Servicer is no longer the Servicer, the Company shall provide the items listed in subsections (a)(i) and (a)(vii) instead of the Servicer:
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy four copies of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of the Independent Accountants or a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) of recogized national standing stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Lease Acquisition Agreement, the Receivables Purchase related Insurance Agreement and this the Servicing Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
Appears in 1 contract
Samples: Standard Terms and Conditions of Servicing (American Business Financial Services Inc /De/)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer MicroFinancial Incorporated, if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, shall deliver to the Indenture Trustee, the Placement Agents Note Insurer, each Noteholder, the Back-up Servicer and each Holder the Rating Agencies (and, upon the request of any Noteholder, to any prospective transferee of any NoteNote that has executed an agreement with the Issuer and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) Independent Accountants stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants Independent Accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 45 days of after the end of each fiscal quarter, unaudited versions of each the Reported Company's Companies' consolidated and consolidating balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) accompanying each set of Reported Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Contract Acquisition Agreement, the Receivables Purchase Insurance Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company Companies during the period covered by such the Reported Company's Companies Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer (provided, however, that if Wellx Xxxgo is the successor Servicer, it shall only be required to deliver items (i), (v) and (vi) below, and Trendwest shall be required to deliver items (ii), (iii) and (iv) with respect to itself and the Issuer)) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and Initial Purchaser, each Holder and the Rating Agencies (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 days after the end of each fiscal year of each Reported Company, a copy of such Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) KPMG LLP or, with respect to WorldMark, Molaxxxx, PeughXxugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet sheet, income statement and income cash flow statement; and;
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Contracts in compliance with the procedures hereof except as disclosed in such certificate;
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Servicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement Indenture or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation material investigation, of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
(vii) with reasonable promptness any other data and information which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Notes in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended.
(b) On or before each April 30, so long as any of the Notes are outstanding, the Servicer shall furnish to the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Trustee created by the Indenture and the Issuer created Receivables Purchase Agreement with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Trustee in the Trust Estate until the date such next Officer's Certificate is due.
(c) On a quarterly basis, the Servicer shall cause the Independent Accountants to review the information provided by the Servicer in each Monthly Servicer's Report in such quarter indicating the number of Vacation Credits that have been created and the number of Vacation Credits sold to WorldMark owners. On or prior to April 15 of each year, beginning in 2002, the Servicer shall cause the Independent Accountants to audit such reporting for the prior fiscal year. The Servicer shall cause delivery of each such report to the Issuer, the Trustee and the Initial Purchaser and the Rating Agencies.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, shall deliver to the Trustee, the Placement Agents Agent and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 one hundred and twenty (120) days after the end of each fiscal year of each the Reported Company, a copy of such the Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such the Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Contribution Agreement and this Agreement Agreement, and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company during the period covered by such the Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review the
(iv) the officer signing such certificate is of the opinion that during such period the Servicer has serviced the Lease Contracts in compliance with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that the procedures hereof except as disclosed in such financial statements present fairly the financial condition of such Reported Companycertificate;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, Default or a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(viiv) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club it or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club Contributor or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits;
(v) with reasonable promptness any other data and information which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Notes in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended; and
(vi) quarterly, unaudited versions of the Reported Company's consolidated balance sheet and income statement.
(b) On or before each July 31, so long as any of the Notes are outstanding, the Servicer shall furnish to the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the security interest of the Trustee created by the Indenture with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such security interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the security interest of the Trustee in the Trust Estate until the date such next Officer's Certificate is due.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. The Manager will deliver to the Indenture Trustee, the Backup Manager, each Rating Agency and the Class A Note Insurer, except as provided in subsection (h):
(a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 90 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of the Reported Companies' Financial Statements for such Reported Company's Financial Statements, all fiscal year certified in reasonable detail and accompanied a manner acceptable to the Controlling Party by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such the senior financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests officer of the accounting records and Manager or such other auditing procedures person as were considered necessary in may be acceptable to the circumstancesControlling Party, it being understood that delivery to the Indenture Trustee, the Backup Manager, each Rating Agency and the Class A Note Insurer of the Manager's report on Form 10-K filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(a);
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iiib) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) each set of Reported Companies' Financial Statements delivered pursuant to subsections subsection (a)(ia) above and (a)(iid) abovebelow, each a certificate of an officer of the Issuer, Manager demonstrating compliance with all financial covenants or tests calculated by reference to such financial statements and containing an additional certification to the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating effect that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions activities of such Reported Company the Manager during the period covered by such the Reported Company's Companies' Financial Statements then being furnishedStatements, that the review and of its performance under this Agreement has not disclosed the existence of any Default or Event of Default been made under the Indenture or any Servicer Default or Servicer Event supervision of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action officer executing such Person has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate with a view to determining whether during such period the Manager had performed and observed all of its obligations under this Agreement, and either (i) stating that based on such financial statements present fairly review no default by the financial condition of Manager under this Agreement has occurred and is continuing, or (ii) if such Reported Companya default has occurred and is continuing, specifying such default, the nature and status thereof and what steps, if any, the Manager is planning to do or has done to cure such default;
(vc) immediately promptly upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Manager Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the IndentureTermination, a written notice describing its nature and period of existence and what action the Servicer Manager is taking or proposes to take with respect thereto;
(vid) promptly upon quarterly, unaudited versions of the ServicerReported Companies' consolidated balance sheet, year-to-date income statement, retained earnings and cash flows within 45 days after the end of each quarter (other than the quarter at the end of each fiscal year), it being understood that delivery to the Indenture Trustee, the Backup Manager, each Rating Agency and the Class A Note Insurer of the Manager's becoming aware of:report on Form 10-Q filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(d);
(Ae) copies of any proposed reports filed by the Manager with the SEC or pending investigation the Rating Agencies concerning the Manager;
(f) in the case of itthe Initial Manager, copies of any certificates required to be furnished by the Initial Manager under any credit agreement to which the Initial Manager is a party and which addresses compliance by the Initial Manager with the requirements of such credit agreement and the absence or existence of defaults thereunder;
(g) such other information regarding the Railcars, the SubservicerLeases, the Club Manager or the Issuer by any governmental authority or agencytransactions contemplated hereby, oras the Class A Note Insurer may reasonably request; and
(Bh) any pending or proposed court or administrative proceeding which involves or may involve with respect to the possibility of materially financial reports described in subsections (a) and adversely affecting (d), and the propertiesnotice described in subsection (c), business, prospects, profits or condition (financial or otherwise) of the Servicerabove, the Subservicer, TFI, SPC, Manager will also deliver such reports to the Club or Holders (except that the Issuer, a written Manager shall not be obligated to deliver the notice specifying described in subsection (c) above to each Holder if the nature Controlling Party has waived such Manager Event of such investigation or proceeding and what action the Servicer is taking or proposes to take Termination in accordance with respect thereto and evaluating its merits; andSection 6.04).
Appears in 1 contract
Samples: Management Agreement (Andersons Inc)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) Manager will deliver, or cause to be delivered, deliver to the TrusteeAgent, the Placement Agents and each Holder except as provided in subsection (and, upon the request of any Noteholder, to any prospective transferee of any Noteh):
(ia) within 120 days after the end of each fiscal year of each Reported the Company, a copy of the Company’s Financial Statements for such Reported Company's Financial Statements, all fiscal year certified in reasonable detail and accompanied a manner acceptable to the Agent by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such the senior financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests officer of the accounting records and Manager or such other auditing procedures person as were considered necessary in may be acceptable to the circumstancesAgent, it being understood that delivery to the Agent of the Manager’s report on Form 10-K filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(a);
(iib) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) ’s Financial Statements delivered pursuant to subsections subsection (a)(ia) above and (a)(iid) abovebelow, each a certificate of an officer of the Issuer, Manager demonstrating compliance with all financial covenants or tests calculated by reference to such financial statements and containing an additional certification to the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating effect that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions activities of such Reported Company the Manager during the period covered by such Reported the Company's ’s Financial Statements then being furnishedStatements, that the review and of its performance under this Agreement has not disclosed the existence of any Default or Event of Default been made under the Indenture supervision of the officer executing such Officer’s Certificate with a view to determining whether during such period the Manager had performed and observed all of its obligations under this Agreement, and either (i) stating that based on such review no default by the Manager under this Agreement has occurred and is continuing, or any Servicer Default or Servicer Event of Default or(ii) if such a default has occurred and is continuing, specifying such default, the nature and status thereof and what steps, if a Default any, the Manager is planning to do or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect has done to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action cure such Person has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Companydefault;
(vc) immediately promptly upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Manager Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the IndentureTermination, a written notice describing its nature and period of existence and what action the Servicer Manager is taking or proposes to take with respect thereto;
(vid) promptly upon quarterly, unaudited versions of the Servicer's becoming aware of:Company’s consolidated balance sheet, year-to-date income statement, retained earnings and cash flows within 45 days after the end of each quarter (other than the quarter at the end of each fiscal year), it being understood that delivery to the Agent of the Manager’s report on Form 10-Q filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(d);
(Ae) copies of any proposed reports filed by the Manager with the SEC concerning the Manager;
(f) in the case of the Initial Manager, copies of any certificates required to be furnished by the Initial Manager under any credit agreement to which the Initial Manager is a party and which addresses compliance by the Initial Manager with the requirements of such credit agreement and the absence or pending investigation existence of itdefaults thereunder; and
(g) such other information regarding the Railcars or the Leases, the Subservicer, the Club Manager or the Issuer by any governmental authority or agencytransactions contemplated hereby, or
(B) any pending or proposed court or administrative proceeding which involves or as the Agent may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; andreasonably request.
Appears in 1 contract
Samples: Management Agreement (Andersons Inc)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents Agent and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 days after the end of each fiscal year of each Reported Company, a copy of such Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLPKPMG Peat Marwick, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet sheet, income statement and income cash flow statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Contracts in compliance with the procedures hereof except as disclosed in such certificate;
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and the successor Servicer Company if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the Trustee, the Placement Agents Agent, MBIA, the Back-up Servicer, the Rating Agencies and each Holder Certificateholder of Outstanding Certificates (and, upon the request of any NoteholderCertificateholder, to any prospective transferee of any NoteCertificate which has executed an agreement with the Transferor and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) Independent Accountants stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Trust and Security Agreement, the Receivables Purchase Lease Acquisition Agreement, the Insurance Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company Companies during the period covered by such the Reported Company's Companies Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Lease Contracts in compliance with the procedures hereof except as disclosed in such certificate.
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, Default or a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
; (viiv) promptly upon the Servicer's becoming aware of:
: (A) any proposed or pending investigation of it, the Subservicer, the Club it or the Issuer Transferor by any governmental authority or agency, or
or (B) any pending or proposed court or administrative proceeding which involves or may involve the possibility probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club Servicer or the IssuerTransferor or the Trust Estate, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and(v) with reasonable promptness any other data and information with respect to the Servicer or the Lease Assets which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Certificates in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended; (vi) quarterly, unaudited versions of the Reported Companies' consolidating balance sheet and income statement within 45 days after the end of each quarter; and (vii) such other information as may be specified in the Trust and Security Agreement.
(b) On or before each March 25, commencing March 25, 1998, so long as any of the Certificates are outstanding, the Servicer shall furnish to MBIA, each Certificateholder and the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Trustee created by the Trust and Security Agreement with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Trustee in the Trust Estate until the date such next Officer's Certificate is due.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and the successor Servicer Company if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):deliver to
(i) within 120 days after the end of each fiscal year of each the Reported Company, a copy four copies of such the Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of the Independent Accountants or a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally of recognized accounting firm) national standing stating that such financial statements present fairly the financial condition of such the Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Trust and Security Agreement, the Receivables Purchase Contribution Agreement, the Insurance Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company during the period covered by such the Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review the
(iv) the officer signing such certificate is of the opinion that during such period the Servicer has serviced the Lease Contracts in compliance with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that the procedures hereof except as disclosed in such financial statements present fairly the financial condition of such Reported Companycertificate;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, Default or a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
(viiv) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club it or the Issuer Transferor by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits;
(v) with reasonable promptness any other data and information which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Certificates in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended; and
(vi) quarterly, unaudited versions of the Reported Company's consolidating balance sheet and income statement and consolidated statement of sources and uses of cash.
(b) On or before each April 15, so long as the Certificates are outstanding, the Servicer shall furnish to the Bond Insurer and the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Trustee created by the Trust and Security Agreement with respect to the Trust Property and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Trustee in the Trust Property until the date such next Officer's Certificate is due.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer MicroFinancial Incorporated, if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, shall deliver to the Indenture Trustee, each Noteholder, the Placement Agents Back-up Servicer and each Holder the Rating Agencies (and, upon the request of any Noteholder, to any prospective transferee of any NoteNote that has executed an agreement with the Issuer and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) Independent Accountants stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants Independent Accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 45 days of after the end of each fiscal quarter, unaudited versions of each the Reported Company's Companies' consolidated and consolidating balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) accompanying each set of Reported Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Contract Acquisition Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company Companies during the period covered by such the Reported Company's Companies Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Contracts in compliance with the procedures hereof except as disclosed in such certificate;
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Trigger Event, Servicer Default, Default or a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is has taken or proposes to take with respect thereto;
(viv) promptly upon the Servicer's Servicer becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club it or the Issuer by any governmental authority or agencyagency (other than those occurring in the ordinary course of business), or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club Servicer or the IssuerIssuer or the Trust Estate, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking has taken or proposes to take with respect thereto and evaluating its merits;
(vi) with reasonable promptness, any other data and information with respect to the Servicer or the Contract Assets which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Notes in order to satisfy the requirements of Rule 144A under the Securities Act; and
(vii) such other information as may be specified in the Indenture.
(b) So long as any of the Notes are Outstanding, upon the written request of the Majority Holders or the Indenture Trustee, the Servicer shall furnish to such requesting party an Officer's Certificate, stating either (i) that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as is necessary to maintain the interest of the Indenture Trustee for the benefit of the Noteholders created by the Indenture with respect to the Trust Estate and reciting the details of such action or (ii) that no action is necessary to maintain such interest; provided that the Servicer shall not be required to furnish more than one such Officer's Certificate annually. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Indenture Trustee for the benefit of the Noteholders in the Trust Estate until the date such next Officer's Certificate is due.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer (provided, however, that if Wxxxx Fargo is the successor Servicer, it shall only be required to deliver items (i), (v) and (vi) below, and Trendwest shall be required to deliver items (ii), (iii) and (iv) with respect to itself and the Issuer)) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and Initial Purchaser, each Holder and the Rating Agencies (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 days after the end of each fiscal year of each Reported Company, a copy of such Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) MolaxxxxKPMG LLP or, with respect to WorldMark, Mxxxxxxx, Peugh, McDaniel, Scroxxxx Sxxxxxxx & Xo. Co. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet sheet, income statement and income cash flow statement; and;
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Contracts in compliance with the procedures hereof except as disclosed in such certificate;
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Servicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement Indenture or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation material investigation, of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
(vii) with reasonable promptness any other data and information which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Notes in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended.
(b) On or before each April 30, so long as any of the Notes are outstanding, the Servicer shall furnish to the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Trustee created by the Indenture and the Issuer created Receivables Purchase Agreement with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Trustee in the Trust Estate until the date such next Officer's Certificate is due.
(c) On a quarterly basis, the Servicer shall cause the Independent Accountants to review the information provided by the Servicer in each Monthly Servicer's Report in such quarter indicating the number of Vacation Credits that have been created and the number of Vacation Credits sold to WorldMark owners. On or prior to April 15 of each year, beginning in 2003, the Servicer shall cause the Independent Accountants to audit such reporting for the prior fiscal year. The Servicer shall cause delivery of each such report to the Issuer, the Trustee and the Initial Purchaser and the Rating Agencies.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the Trustee, the Placement Agents Special Servicer, the Rating Agency, the Certificateholder Agent and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):Certificateholder:
(i) within 120 one hundred twenty (120) days after the end of each fiscal year of each Reported Companyyear, a copy of either (A) the Servicer Financial Statements for such Reported Company's Financial StatementsServicer, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) the Independent Accountant stating that such financial statements present fairly the financial condition of such Reported Company the Servicer (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstancescircumstances or (B) the Servicer=s Form 10-K for such fiscal year;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Servicer Financial Statements or Form 10-K delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Trust Agreement, the Receivables Purchase Loan Acquisition Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions condition of such Reported Company the Servicer during the period covered by such Reported Company's the Servicer Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review the
(iv) the officer signing such certificate is of the opinion that during such period the Servicer has serviced the Loans in compliance with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that the procedures hereof except as disclosed in such financial statements present fairly the financial condition of such Reported Companycertificate;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Depositor Event of Default, Special Servicer Default, Special Servicer Event of Default, Servicing Advisor Default or a Subservicer Servicing Advisor Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the IndentureDefault, a written notice describing its nature and period of existence and what action the Servicer or, if known to the Servicer, such other Person, as applicable, is taking or proposes to take with respect thereto;
(viiv) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of itit or the Depositor, the SubservicerServicer, the Club Special Servicer or the Issuer Servicing Advisor by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Depositor, the Servicer, the Subservicer, TFI, SPC, the Club Special Servicer or the IssuerServicing Advisor, a written notice specifying the nature of such investigation or proceeding and what action the Servicer or, if known to the Servicer, such other Person, as applicable, is taking or proposes to take with respect thereto and evaluating its merits;
(v) with reasonable promptness any other data and information with respect to the Servicer, the Depositor or the Loan Assets which may be reasonably requested from time to time, including any information required to be made available at any time to any prospective transferee of any Certificates in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended; and
(vi) within sixty (60) days following the end of a fiscal quarter, either (A) the Servicer=s most recent Form 10-Q or (B) unaudited Servicer Financial Statements for such fiscal quarter.
(b) The Special Servicer will deliver to the Trustee, the Servicer, the Rating Agency, the Certificateholder Agent and each Certificateholder:
(i) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, Servicer Event of Default, Depositor Event of Default, Special Servicer Default, Special Servicer Event of Default, Servicing Advisor Default, Servicing Advisor Event of Default or non-compliance with the Pool Performance Condition, a written notice describing its nature and period of existence and what action the Special Servicer or, if known to the Special Servicer, such other Person, as applicable, is taking or proposes to take with respect thereto;
(ii) promptly upon the Special Servicer's becoming aware of:
(A) any proposed or pending investigation of it or the Depositor, the Servicer, the Special Servicer or the Servicing Advisor by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Depositor, the Servicer, the Special Servicer or the Servicing Advisor, a written notice specifying the nature of such investigation or proceeding and what action the Special Servicer or, if known to the Special Servicer, such other Person, as applicable is taking or proposes to take with respect thereto and evaluating its merits; and
(iii) with reasonable promptness any other data and information with respect to the Special Servicer, the Depositor or the Loan Assets which may be reasonably requested from time to time, including any information required to be made available at any time to any prospective transferee of any Certificates in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended.
(c) On the Determination Date occurring in March, beginning in 1998, so long as any of the Certificates are Outstanding, each of the Servicer and the Special Servicer shall furnish to the Trustee and the Certificateholder Agent an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements, and all other actions, as necessary to maintain the perfected security interest of the Trustee (for the benefit of the Certificateholders) in the Trust Estate and to maintain the interest of the Depositor (assigned to the Trustee) in the Loan Assets and reciting the details of such actions or stating that no such actions are necessary to maintain such interest. Such Officer's Certificates shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements, and such other actions, that will be required to maintain the perfected security interest of the Trustee (for the benefit of the Certificateholders) in the Trust Estate until the date such next Officer's Certificates are due. On the Payment Date following such Determination Date, the Trustee shall furnish a copy of such Officer's Certificates to each Certificateholder. In addition, on the Determination Date occurring in March, 2002, and on each five (5) year anniversary thereof so long as any of the Certificates are Outstanding, the Special Servicer shall furnish to the Trustee and the Certificateholder Agent an Opinion of Counsel stating that, in the opinion of such counsel, either (a) such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements, and all other actions, as necessary to maintain the perfected security interest of the Trustee (for the benefit of the Certificateholders) in the Trust Estate and to maintain the interest of the Depositor (assigned to the Trustee) in the Loan Assets and reciting the details of such actions or (b) no such actions are necessary to maintain such interest. Such opinion shall also specify any actions necessary to be taken prior to the expected date of the next opinion in order to maintain the perfected security interest of the Trustee (for the benefit of the Certificateholders).
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and the successor Servicer Company if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the Trustee, the Placement Agents Agent, MBIA, the Back-up Servicer, the Rating Agencies and each Holder Certificateholder of Outstanding Certificates (and, upon the request of any NoteholderCertificateholder, to any prospective transferee of any NoteCertificate which has executed an agreement with the Transferor and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) Independent Accountants stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Trust and Security Agreement, the Receivables Purchase Lease Acquisition Agreement, the Insurance Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company Companies during the period covered by such the Reported Company's Companies Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Lease Contracts in compliance with the procedures hereof except as disclosed in such certificate.
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, Default or a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
(viiv) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club it or the Issuer Transferor by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club Servicer or the IssuerTransferor or the Trust Estate, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits;
(v) with reasonable promptness any other data and information with respect to the Servicer or the Lease Assets which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Certificates in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended;
(vi) quarterly, unaudited versions of the Reported Companies' consolidating balance sheet and income statement and consolidated sources and uses of funds within 45 days after the end of each quarter; and
(vii) such other information as may be specified in the Trust and Security Agreement.
(b) On or before each November 5, commencing November 5, 1997, so long as any of the Certificates are outstanding, the Servicer shall furnish to MBIA, each Certificateholder and the Trustee an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Trustee created by the Trust and Security Agreement with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Trustee in the Trust Estate until the date such next Officer's Certificate is due.
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the TrusteeAgent, the Placement Agents and each Holder except as provided in subsection (and, upon the request of any Noteholder, to any prospective transferee of any Noteh):
(ia) within 120 days after the end of each fiscal year of each Reported the Company, a copy of the Company’s financial statements for such Reported fiscal year certified in a manner acceptable to the Agent by the senior financial officer of the Servicer or such other person as may be acceptable to the Agent, it being understood that delivery to the Agent of the Servicer’s report on Form 10-K filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(a);
(b) with each set of the Company's Financial Statements’s financial statements delivered pursuant to subsection (a) above and (d) below, the Servicer will deliver an Officer’s Certificate demonstrating compliance with all in reasonable detail and accompanied financial covenants or tests calculated by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that reference to such financial statements present fairly and containing an additional certification to the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and effect that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions activities of such Reported Company the Servicer during the period covered by such Reported the Company's Financial Statements then being furnished’s financial statements, that the review and of its performance under this Agreement has not disclosed the existence of any Default or Event of Default been made under the Indenture supervision of the officer executing such Officer’s Certificate with a view to determining whether during such period the Servicer had performed and observed all of its obligations under this Agreement, and either (i) stating that based on such review no default by the Servicer under this Agreement has occurred and is continuing, or any Servicer Default or Servicer Event of Default or(ii) if such a default has occurred and is continuing, specifying such default, the nature and status thereof and what steps, if a Default any, the Servicer is planning to do or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect has done to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action cure such Person has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Companydefault;
(vc) immediately promptly upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the IndentureTermination, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
(vid) promptly upon quarterly, unaudited versions of the Company’s consolidated balance sheet, year-to-date income statement, retained earnings and cash flows within 45 days after the end of each quarter (other than the quarter at the end of each fiscal year), it being understood that delivery to the Agent of Servicer’s report on Form 10-Q filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(d);
(e) copies of any reports filed by the Servicer with the SEC concerning the Servicer's becoming aware of:;
(Af) in the case of the Initial Servicer, copies of any proposed certificates required to be furnished by the Initial Servicer under any credit agreement to which the Initial Servicer shall be a party and which address compliance by the Initial Servicer with the requirements of such credit agreement and the absence or pending investigation existence of itdefaults thereunder;
(g) such other information regarding the Railcars or the Leases, the Subservicer, the Club Servicer or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or transactions contemplated hereby as the Agent may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; andreasonably request.
Appears in 1 contract
Samples: Servicing Agreement (Andersons Inc)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and LFG if it has been terminated as Servicer but the successor Servicer if the initial Servicer is no longer the ServicerLease Acquisition Agreement remains in effect) will deliver, or cause to be delivered, deliver to the Indenture Trustee, the Placement Agents Back-up Servicer and to each Holder Noteholder of Outstanding Notes (and, upon the request of any Noteholder, to any prospective transferee of any NoteNote which has executed an agreement with the Issuer and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each Reported CompanyNOVA, a copy of such Reported Company's Financial Statementsthe NOVA audited financial statements, all in reasonable detail and accompanied by an opinion of the Independent Accountants or a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally of recognized accounting firm) national standing stating that such financial statements present fairly the financial condition of such Reported Company NOVA (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) NOVA Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement Transaction Documents and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company LFG during the period covered by such Reported Company's the NOVA Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Servicing Termination Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Servicing Termination Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Lease Assets in compliance with the procedures hereof except as disclosed in such certificate.
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(viii) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of DefaultServicing Termination Event, a Subservicer Default an Amortization Event, Rapid Amortization Event, or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
(viiv) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of itLFG, the Subservicer, the Club LFC VI or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility probability of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the ServicerLFG, the SubservicerLFC VI, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits;
(v) with reasonable promptness any other data and information with respect to the Servicer or the Lease Assets which may be reasonably requested from time to time, including without limitation any information required to be made available at any time to any prospective transferee of any Notes in order to satisfy the requirements of Rule 144A under the Securities Act of 1933, as amended;
(vi) such other information as may be specified in the Indenture;
(vii) within 45 days of the end of each fiscal quarter of each of NOVA, quarterly, unaudited consolidating balance sheet and income statement and consolidated statement of sources and uses of cash for NOVA and its subsidiaries; and
(viii) within 45 days of the end of each fiscal quarter of each of LFG, quarterly, unaudited consolidating balance sheet and income statement and consolidated statement of sources and uses of cash for LFG and its subsidiaries.
(b) On or before each April 15, so long as any of the Notes are outstanding, the Servicer shall furnish to the Indenture Trustee and the Noteholders an Officer's Certificate either stating that such action has been taken with respect to the recording, filing, and rerecording and refiling of any financing statements and continuation statements as necessary to maintain the interest of the Indenture Trustee created by the Indenture with respect to the Trust Estate and reciting the details of such action or stating that no such action is necessary to maintain such interest. Such Officer's Certificate shall also describe the recording, filing, rerecording and refiling of any financing statements and continuation statements that will be required to maintain the interest of the Indenture Trustee in the Trust Estate until the date such next Officer's Certificate is due.
Appears in 1 contract
Samples: Servicing Agreement (Nova Corp \Ga\)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and Initial Purchaser, each Holder and the Rating Agencies (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 days after the end of each fiscal year of each Reported Company, a copy of such Reported Company's Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLPKPMG Peat Marwick, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet sheet, income statement and income cash flow statement; and;
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such Reported Company during the period covered by such Reported Company's Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person has taken and is taking with respect thereto, and that on the basis of such review thethe officer signing such certificate is of the opinion that during such period the Servicer has serviced the Contracts in compliance with the procedures hereof except as disclosed in such certificate;
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Servicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement Indenture or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and period of existence and what action the Servicer is or proposes to take with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; and
Appears in 1 contract
Financial Statements; Certification as to Compliance; Notice of Default. The Servicer will deliver to the Indenture Trustee, the Backup Servicer, each Rating Agency and the Class A Note Insurer, except as provided in subsection (h):
(a) The Servicer (or the successor Servicer if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, to the Trustee, the Placement Agents and each Holder (and, upon the request of any Noteholder, to any prospective transferee of any Note):
(i) within 120 90 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of the Reported Companies' Financial Statements for such Reported Company's Financial Statementsfiscal year certified in a manner acceptable to the Controlling Party by the senior financial officer of the Servicer or such other person as may be acceptable to the Controlling Party, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxxit being understood that delivery to the Indenture Trustee, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) stating that such financial statements present fairly the financial condition of such Reported Company (or, in the case of a successor Backup Servicer, such successor each Rating Agency and the Class A Note Insurer of the Servicer's financial condition) report on Form 10-K filed with the Securities and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concurExchange Commission shall satisfy the requirements of this Section 3.02(a), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iiib) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) each set of Reported Companies' Financial Statements delivered pursuant to subsections subsection (a)(ia) above and (a)(iid) above, each of the Issuerbelow, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating demonstrating compliance with all financial covenants or tests calculated by reference to such financial statements and containing an additional certification to the effect that such officer has reviewed the relevant terms of the Indenture, the Sale Agreement, the Receivables Purchase Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions activities of such Reported Company the Servicer during the period covered by such the Reported Company's Companies' Financial Statements then being furnishedStatements, that the review and of its performance under this Agreement has not disclosed the existence of any Default or Event of Default been made under the Indenture or any Servicer Default or Servicer Event supervision of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action officer executing such Person has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate with a view to determining whether during such period the Servicer had performed and observed all of its obligations under this Agreement, and either (i) stating that based on such financial statements present fairly review no default by the financial condition of Servicer under this Agreement has occurred and is continuing, or (ii) if such Reported Companya default has occurred and is continuing, specifying such default, the nature and status thereof and what steps, if any, the Servicer is planning to do or has done to cure such default;
(vc) immediately promptly upon becoming aware of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the IndentureTermination, a written notice describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto;
(vid) promptly upon quarterly, unaudited versions of the Reported Companies' consolidated balance sheet, year-to-date income statement, retained earnings and cash flows within 45 days after the end of each quarter (other than the quarter at the end of each fiscal year), it being understood that delivery to the Indenture Trustee, the Backup Servicer, each Rating Agency and the Class A Note Insurer of the Servicer's becoming aware of:report on Form 10-Q filed with the Securities and Exchange Commission shall satisfy the requirements of this Section 3.02(d);
(Ae) copies of any proposed reports filed by the Servicer with the SEC or pending investigation the Rating Agencies concerning the Servicer;
(f) in the case of itthe Initial Servicer, copies of any certificates required to be furnished by the Initial Servicer under any credit agreement to which the Initial Servicer shall be a party and which address compliance by the Initial Servicer with the requirements of such credit agreement and the absence or existence of defaults thereunder;
(g) such other information regarding the Railcars, the SubservicerLeases, the Club Servicer or the Issuer by any governmental authority or agency, ortransactions contemplated hereby as the Class A Note Insurer may reasonably request; and
(Bh) any pending or proposed court or administrative proceeding which involves or may involve with respect to the possibility of materially financial reports described in subsections (a) and adversely affecting (d), and the propertiesnotice described in subsection (c), business, prospects, profits or condition (financial or otherwise) of the Servicerabove, the Subservicer, TFI, SPC, Servicer will also deliver such reports to the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action Holders (except that the Servicer is taking or proposes shall not be obligated to take deliver the notice described in subsection (c) above to each Holder if the Controlling Party has waived such Servicer Event of Termination in accordance with respect thereto and evaluating its merits; andSection 6.04).
Appears in 1 contract
Samples: Servicing Agreement (Andersons Inc)
Financial Statements; Certification as to Compliance; Notice of Default. (a) The Servicer (or and the successor Servicer Company if the initial Servicer is no longer the Servicer) will deliver, or cause to be delivered, deliver to the Trustee, the Placement Agents Agent, MBIA, the Back-up Servicer, the Rating Agencies and each Holder Certificateholder of Outstanding Certificates (and, upon the request of any NoteholderCertificateholder, to any prospective transferee of any NoteCertificate which has executed an agreement with the Transferor and the Servicer containing terms substantially similar to those set forth in Section 4.04(f) hereof):
(i) within 120 days after the end of each fiscal year of each the Reported CompanyCompanies, a copy of such the Reported Company's Companies' Financial Statements, all in reasonable detail and accompanied by an opinion of a firm of independent certified public accountants (which shall be (i) Molaxxxx, Peugh, McDaniel, Scroxxxx & Xo. LLP, (ii) a legal successor thereto, or (iii) a nationally recognized accounting firm) Independent Accountants stating that such financial statements present fairly the financial condition of such the Reported Company Companies (or, in the case of a successor Servicer, such successor Servicer's financial condition) and have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which such accountants concur), and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within 60 days with each set of the end of each fiscal quarter, unaudited versions of each Reported Company's consolidated balance sheet and income statement; and
(iii) with the Issuer's, the Servicer's and Trendwest's (if Trendwest is not the Servicer) Companies' Financial Statements delivered pursuant to subsections subsection (a)(i) and (a)(ii) above, each of the Issuer, the Servicer and Trendwest (if Trendwest is not the Servicer) will deliver an Officer's Certificate stating that such officer has reviewed the relevant terms of the Indenture, the Sale Trust and Security Agreement, the Receivables Purchase Lease Acquisition Agreement, the Insurance Agreement and this Agreement and has made, or caused to be made, under such officer's supervision, a review of the transactions and conditions of such the Reported Company Companies during the period covered by such the Reported Company's Companies Financial Statements then being furnished, that the review has not disclosed the existence of any Default or Event of Default under the Indenture or any Servicer Default or Servicer Event of Default or, if a Default or Event of Default under the Indenture or a Servicer Default or a Servicer Event of Default exists, describing its nature, nature and the Issuer, with respect to a Default or Event of Default, or the Servicer, with respect to a Servicer Default or a Servicer Event of Default, describing what action such Person the Servicer has taken and is taking with respect thereto, and that on the basis of such review the
(iv) with each Reported Company's Financial Statements delivered pursuant to subsections (a)(i) and (a)(ii) above, each Reported Company shall deliver an Officer's Certificate stating that the officer signing such financial statements present fairly the financial condition of such Reported Company;
(v) immediately upon becoming aware certificate is of the existence of any condition or event which constitutes a Servicer Default, a Servicer Event of Default, a Subservicer Default or a Subservicer Event of Default hereunder, a Default or an Event of Default under the Indenture, Sale Agreement or Receivables Purchase Agreement, or a Trigger Event or Cash Accumulation Event under the Indenture, a written notice describing its nature and opinion that during such period of existence and what action the Servicer is or proposes to take has serviced the Lease Contracts in compliance with respect thereto;
(vi) promptly upon the Servicer's becoming aware of:
(A) any proposed or pending investigation of it, the Subservicer, the Club or the Issuer by any governmental authority or agency, or
(B) any pending or proposed court or administrative proceeding which involves or may involve the possibility of materially and adversely affecting the properties, business, prospects, profits or condition (financial or otherwise) of the Servicer, the Subservicer, TFI, SPC, the Club or the Issuer, a written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits; andthe
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