Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occur: (a) any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement; (b) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant or agreement of the Sellers in any Transaction Document, which failure continues unremedied for a period of 30 days (PROVIDED, THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicable; (c) (i) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect; (d) TMM or any other Seller shall consent to the appointment of a conservator, receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; (e) the Trust shall be required to be registered (i) as an "investment company" within the meaning of the Investment Company Act or (ii) under the Trust Indenture Act; (f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below; (g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder; (h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition; (i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars; (j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect; (k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable; (l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order; (m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof; (n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more; (o) if the Servicer is TMM, any Servicer Default shall occur and be continuing; (p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00; (q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion; (r) a Change in Control shall have occurred; or (s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 2 contracts
Samples: Master Trust Agreement (TMM Holdings Sa De Cv), Master Trust Agreement (TMM Holdings)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of 7.01 Rapid Amortization Events The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, default in the case payment of any payment other than payments of principal interest when the same becomes due and interest on any Distribution Date, payable and such payment shall not be made default continues for a period of thirty (30) days after five Business Days or a failure to pay the date required entire principal of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;.
(b) failure on the part of the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, (i) TMM (to make any payment or deposit required by the terms of the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as a Sellerapplicable, Guarantorwithin two Business Days after notification that such payment or deposit is required to be made, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, set forth in any Transaction Documentthe Mortgage Loan Sale Agreement, which failure Transfer and Servicing Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Master Servicer, the earlier to occur of (x) actual knowledge by Seller or a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Master Servicer, the Seller or the Port Option Agreementa Servicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (i) any representation the Issuer, the Master Servicer, the Seller or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) Servicer or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Seller or a Servicer or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Seller or such other Seller a Servicer and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(d) any representation or warranty made by the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, in this Indenture, the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a result of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, by the Indenture Trustee, or to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Notes evidencing more than 50% of the Outstanding Amount;
(e) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or (ii) under the Trust Indenture Actof 1940, as amended;
(f) TMM cumulative draws in respect of interest under the Policy exceed 1% of the aggregate Cut-off Date Pool Balance or there is any other Seller shall, draw in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability respect of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;principal; and
(g) the assignment an Event of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Servicing Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice Servicer pursuant to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as related Servicing Agreement or an Event of the date of such notice, a Rapid Amortization Commencement Date Master Servicing Termination pursuant to this Agreement has occurred with respect to such Seriesoccurred. In the case of any event set forth described in SECTION 7.1(dclauses (a), (b), (e), (f) or and (g) above, a Rapid Amortization Commencement Date with respect to all Series Event will be deemed to have occurred without only if, after the applicable grace period, if any, described in the Indenture or Transfer and Servicing Agreement, any of the Indenture Trustee or Holders holding Notes evidencing more than 50% of the Outstanding Amount, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is continuing) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Issuer, the Insurer, the Sponsor, and the Servicer (and to the Indenture Trustee, if given by the Noteholders or other action the Insurer) declare that a Rapid Amortization Event has occurred as of the date of such notice. If a Rapid Amortization Event occurs solely due to either: (1) a failure on the part of one of the Servicers with respect to (b) above or (2) the occurrence of the event described in (f) above only with respect to one of the Servicers, a Rapid Amortization Event will only apply to the Mortgage Loans serviced by such Servicer. Following the occurrence of a Rapid Amortization Event (except for an event with respect to [_________] only described in either (b) or (g) above), if so directed by the Insurer, so long as no Insurer Default has occurred and is continuing, the Indenture Trustee immediately upon will sell, dispose of or otherwise liquidate the Collateral with respect to the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. With respect to the Notes, the net proceeds of such sale will be paid (i) first, pro rata to the Indenture Trustee the Indenture Trustee Expense Amount and any unpaid fees due and owing and to the Owner Trustee any unpaid fees due and owing, (ii) second, to the Holders of each class of Notes, pro rata based on Note Principal Balances, insofar as may be necessary to reduce the Note Principal Balance of such class, together with all accrued and unpaid interest due thereon, to zero, (iii) third, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, (iv) fourth, to the Indenture Trustee and the Owner Trustee, any unreimbursed expenses due and owing, including, with respect to the Indenture Trustee, all unreimbursed expenses incurred by the Indenture Trustee in connection with such Rapid Amortization Event and sale of the Collateral and (v) fifth, to the Residual Certificateholders, in the order and priority described in Section 5.03(b)(xi), any remaining amounts. In addition to the consequences of a Rapid Amortization Event discussed above, if the Seller or a Servicer voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Seller or a Servicer, on the day of any such filing or appointment with respect to (i) the Seller, no further Additional Balances will be transferred to the Issuer and the Seller will promptly give notice to the Indenture Trustee and (ii) a Servicer, no further Additional Balances relating to Mortgage Loans serviced by such Servicer will be transferred to the Issuer and such Servicer will promptly give notice to the Indenture Trustee and the Insurer of any such filing or appointment. Within 15 days, the Indenture Trustee notify the Holders of the Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date Event, the related Servicer shall no longer receive any principal funds upon the transfer of Additional Balances to the Issuer in respect of the Additional Balance Contributed Amount but will be deemed to have been rescinded with respect to a Series if reimbursed directly by the Trustee, at the direction Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other SeriesClass L Certificate. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date The Holder of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series Class L Certificate will be deposited in the Certificate Account reimbursed for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient payments pursuant to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(aSection 5.01(b)(xi), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Structured Asset Securities Corp), Transfer and Servicing Agreement (Lehman Abs Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurBonds:
(a) failure on the part of the Issuer, the Depositor or the Servicer, as the case may be, (i) to make any payment shall not be made on or deposit required by the date required under terms of this Master Trust Indenture, the Sale and Servicing Agreement or the applicable Supplement (includingInsurance Agreement, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments within two Business Days after notification that such payment or prepayments deposit is required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantormade, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Depositor or the Servicer, as the case may be, set forth in any Transaction Documentthe Sale and Servicing Agreement or the Insurance Agreement or this Indenture, which failure as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Depositor or the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Depositor or the Port Option AgreementServicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Bonds evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (ib) any representation or warranty made by TMM (the Issuer, the Depositor or the Servicer, as the case may be, in this Indenture, the Sale and Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a Sellerresult of which the interests of the Bondholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Bondholders or the Insurer for a period of 60 days after the date on which written notice of such failure, Guarantorrequiring the same to be remedied, shall have been given to the Issuer, the Depositor or the Servicer, as the case may be, by the Indenture Trustee, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Issuer, the Depositor or the Servicer, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Bonds evidencing more than 50% of the Outstanding Amount; provided, however, that with respect to any such representation or warranty made with respect to the Purchased Receivablesrelated Mortgage Loans, proves a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have been incorrect when made, occurred hereunder if the effect Servicer or the Depositor has accepted retransfer of which shall result such related Mortgage Loan or related Mortgage Loans during such period (or such longer period not to exceed an additional 60 days as the Indenture Trustee may specify with the consent of the Insurer) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Servicer, the Depositor or the Issuer or any other Seller of their Subsidiaries o r Affiliates shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer, the Depositor or the Trust or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Servicer, the Depositor of the Trust and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed forthe Servicer, the whole Depositor or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Trust shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) any draw is made under the Trust Indenture ActPolicy with respect to any Class;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability an Event of any Transaction Document or assert the matters set forth in SECTION 7.1(g) belowServicing Termination has occurred;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest default in the Purchased Receivables for purposes payment of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which any Deferred Interest on the assertion of such cessation is made by or Class A Bonds on behalf of a Person other than the Trustee or any Certificateholder;Final Maturity Date; and
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for default in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies)any interest, taken together with any other judgment or order then outstanding, shall have been entered against TMM principal or any installment of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereofprincipal on the Bonds when the same becomes due and payable, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, default continues for a period of sixty (60) calendar days after five Business Days. In the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico case of any of the Transaction Documents, shall have ceased to be event described in full force and effect in all material respects for a period of thirty clauses (30a) days or more;
through (oh) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthe Indenture or Sale and Servicing Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Class A Bonds evidencing more than 50% of such Seriesthe outstanding principal balance of the Class A Bonds, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is continuing or unless a Rapid Amortization Event described in clause (g) above has occurred) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Sellers' Representative Trust, the Insurer, the Depositor, and the Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Bondholders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice. If so directed by the Insurer, so long as no Insurer Default has occurred and is continuing, the Indenture Trustee will and the Insurer (so long as no Insurer Default has occurred and is continuing) or Holders holding Class A Bonds evidencing more than 50% of the outstanding principal balance of the Class A Bonds (if a Rapid Amortization Commencement Date Event described in clause (g) above has occurred occurred) shall have the right to direct the Indenture Trustee to sell, dispose of or otherwise liquidate the Trust Property with respect to the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. So long as no Event of Servicing Termination has occurred and is continuing, any such Seriessale, disposal or liquidation will be "servicing retained" by the Servicer. With respect to the Bonds, the net proceeds of such sale will be paid (i) first, to the Holders of the Bonds insofar as may be necessary to reduce the principal balance of such Class, together with all accrued and unpaid interest due thereon, to zero, (ii) second, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, and (iii) third, to the Residual Certificateholder. In addition to the case consequences of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series Event discussed above, if the Depositor voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Depositor, on the day of any such filing or appointment no further Additional Balances will be deemed transferred to have occurred without the Trust and the Depositor will promptly give notice to the Indenture Trustee and the Insurer of any notice such filing or other action on appointment. Within 15 days, the part Indenture Trustee notify the Holders of the Trustee immediately upon Bonds of the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the managed Amortization Period:
(a) any payment shall not be made failure on the date part of the Seller (i) to make payment or deposit required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDEDterms of this Agreement, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after or before the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) occurring five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) to record assignments when required, or any other Seller shall fail (iii) duly to duly observe or perform in any material respect the covenants of the Seller set forth in Section 2.4(a) or (iv) duly to observe or perform in material respect any other covenant covenants or agreement agreements of the Sellers Seller set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (vi), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Seller and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other the Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect made and as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Certificate Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Seller by the Trustee, or to the Seller and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that an Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Seller have accepted retransfer of the related Mortgage Loans or all Mortgage Loans if applicable during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other the Seller shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Seller or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations (any such event, an "Insolvency Event");
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act of 1940, as amended;
(e) any Event of Default or Trigger Event shall occur (iiother than the event described in clause (iv) under of the Trust Indenture Actdefinition thereof);
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability aggregate of any Transaction Document or assert Certificate Insurance Draw Amounts exceeds ____% of the matters set forth in SECTION 7.1(g) below;Pool Balance as of the Cut-Off Date; or
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all rightif at any time, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received Liquidation Lose Amounts incurred by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. exceed $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates____________. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Certificate Insurer, the Trustee or the Holders of Investor Certificates evidencing Percentage Interests aggregating more than 51%, by notice given in writing to the Servicer (and to the Trustee, acting at if given by either the direction of Certificate Insurer or the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative Certificateholders) may declare that an early amortization event (the an "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraphs (c), (d), (f) or (g) above), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chevy Chase Bank FSB)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of (a) The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, default in the case payment of any payment other than payments of principal interest when the same becomes due and interest on any Distribution Date, payable and such payment shall not be made default continues for a period of thirty (30) days after five Business Days or a failure to pay the date required entire principal of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;.
(b) failure on the part of the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, (i) TMM (to make any payment or deposit required by the terms of the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as a Sellerapplicable, Guarantorwithin two Business Days after notification that such payment or deposit is required to be made, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, set forth in any Transaction Documentthe Mortgage Loan Sale Agreement, which failure Sale and Servicing Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Master Servicer, the earlier to occur of (x) actual knowledge by Seller or a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Master Servicer, the Seller or the Port Option Agreementa Servicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (i) any representation the Issuer, the Master Servicer, the Seller or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) Servicer or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Seller or a Servicer or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Seller or such other Seller a Servicer and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(d) any representation or warranty made by the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, in this Indenture, the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a result of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, by the Indenture Trustee, or to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Notes evidencing more than 50% of the Outstanding Amount;
(e) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or (ii) under the Trust Indenture Actof 1940, as amended;
(f) TMM cumulative draws in respect of interest under the Policy exceed 1% of the aggregate Cut-off Date Pool Balance or there is any other Seller shall, draw in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability respect of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;principal; and
(g) the assignment an Event of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Servicing Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice Servicer pursuant to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as related Servicing Agreement or an Event of the date of such notice, a Rapid Amortization Commencement Date Master Servicing Termination pursuant to this Agreement has occurred with respect to such Seriesoccurred. In the case of any event set forth described in SECTION 7.1(dclauses (a), (b), (e), (f) or and (g) above, a Rapid Amortization Commencement Date with respect to all Series Event will be deemed to have occurred without only if, after the applicable grace period, if any, described in the Indenture or Sale and Servicing Agreement, any of the Indenture Trustee or Holders holding Notes evidencing more than 50% of the Outstanding Amount, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is continuing) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Issuer, the Insurer, the Sponsor, and the Servicer (and to the Indenture Trustee, if given by the Noteholders or other action the Insurer) declare that a Rapid Amortization Event has occurred as of the date of such notice. If a Rapid Amortization Event occurs solely due to either: (1) a failure on the part of one of the Servicers with respect to (b) above or (2) the occurrence of the event described in (f) above only with respect to one of the Servicers, a Rapid Amortization Event will only apply to the Mortgage Loans serviced by such Servicer. Following the occurrence of a Rapid Amortization Event (except for an event with respect to [_________] only described in either (b) or (g) above), if so directed by the Insurer, so long as no Insurer Default has occurred and is continuing, the Indenture Trustee immediately upon will sell, dispose of or otherwise liquidate the Collateral with respect to the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. With respect to the Notes, the net proceeds of such sale will be paid (i) first, pro rata to the Indenture Trustee the Indenture Trustee Expense Amount and any unpaid fees due and owing and to the Owner Trustee any unpaid fees due and owing, (ii) second, to the Holders of each class of Notes, pro rata based on Note Principal Balances, insofar as may be necessary to reduce the Note Principal Balance of such class, together with all accrued and unpaid interest due thereon, to zero, (iii) third, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, (iv) fourth, to the Indenture Trustee and the Owner Trustee, any unreimbursed expenses due and owing, including, with respect to the Indenture Trustee, all unreimbursed expenses incurred by the Indenture Trustee in connection with such Rapid Amortization Event and sale of the Collateral and (v) fifth, to the Residual Certificateholders, in the order and priority described in Section 5.03(b)(xi), any remaining amounts. In addition to the consequences of a Rapid Amortization Event discussed above, if the Seller or a Servicer voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Seller or a Servicer, on the day of any such filing or appointment with respect to (i) the Seller, no further Additional Balances will be transferred to the Issuer and the Seller will promptly give notice to the Indenture Trustee and (ii) a Servicer, no further Additional Balances relating to Mortgage Loans serviced by such Servicer will be transferred to the Issuer and such Servicer will promptly give notice to the Indenture Trustee and the Insurer of any such filing or appointment. Within 15 days, the Indenture Trustee notify the Holders of the Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date Event, the related Servicer shall no longer receive any principal funds upon the transfer of Additional Balances to the Issuer in respect of the Additional Balance Contributed Amount but will be deemed to have been rescinded with respect to a Series if reimbursed directly by the Trustee, at the direction Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other SeriesClass L Certificate. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date The Holder of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series Class L Certificate will be deposited in the Certificate Account reimbursed for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient payments pursuant to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(aSection 5.01(b)(xi), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Thornburg Mortgage Securities Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) default in the payment of any payment shall not be made interest on the date required under this Master Trust Agreement Notes when the same becomes due and payable or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments failure to pay any installment of principal of the Notes in accordance Section 5.03(b) of this Agreement, and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments such default or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made failure continues for a period of thirty (30) days after five Business Days, or a failure to pay the date required entire Note Principal Amount of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a failure on the part of the Issuer, the Depositor, the Seller, Guarantor, or Sellers' Representative) the Master Servicer or any other Seller shall fail Originator to duly observe or perform in any material respect any other covenant material covenants or agreement of agreements set forth in the Sellers in any Transaction DocumentMortgage Loan Sale Agreement, this Agreement, the Indenture or the related Purchase and Servicing Agreement, as the case may be, which failure materially and adversely affects the Noteholders or the Insurers and continues unremedied for a period of 30 days (PROVIDED, THAT, with respect after written notice of such failure requiring the same to be remedied shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Depositor, the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller, the Master Servicer or any Originator as the case may be, by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement Indenture Trustee or the Port Option Agreement, as applicable) shall occur under Insurers in accordance with the Option Agreement or provisions of the Port Option Agreement, as applicableIndenture;
(c) (i) any representation or warranty made by TMM (as a Sellerthe Issuer, Guarantorthe Master Servicer, the Depositor, or Sellers' Representative) the Seller or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Depositor, or the Seller or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Depositor, or such other the Seller and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Depositor, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) any draw under the Trust Indenture Act;either Policy remains unreimbursed for a period of 90 days; or
(f) TMM or any other Seller shallAn Event of Default under this Agreement, in any court or other governmental proceeding, contest in any manner has occurred. In the validity, binding nature, or enforceability case of any Transaction Document or assert the matters set forth event described in SECTION 7.1(g) below;
clauses (g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(ca), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currenciesb), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, (e) and either (if) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthis Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Notes evidencing more than 50% of such Seriesthe Outstanding Amount of the Notes, in each case with the prior written consent of the Controlling Insurer, or the Controlling Insurer, by written notice to the Sellers' Representative Issuer, the Insurers, the Seller, and the Master Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Controlling Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, . If a Rapid Amortization Commencement Date has occurred with respect Event occurs due to such Series. In the case occurrence of any event set forth in SECTION 7.1(d(c) or (gd) above, a Rapid Amortization Commencement Date Event will automatically occur. If the Seller, the Depositor or the Master Servicer or any other their respective affiliates voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of such entity, on the day of any such filing or appointment with respect to all Series (i) the Seller, or any of its Subsidiaries or Affiliates, no further Additional Balances will be deemed transferred to have occurred without the Issuer and the Seller will promptly give notice of any such filing or appointment to the Indenture Trustee, (ii) the Master Servicer or any of its Subsidiaries or Affiliates, no further Additional Balances relating to Loans serviced by the Master Servicer will be transferred to the Issuer and the Master Servicer will promptly give notice to the Indenture Trustee and the Insurers (so long as the Notes are Outstanding or other action on any Reimbursement Amounts remain due and owing to an Insurer) of any such filing or appointment and (iii) the part Depositor or any of its Subsidiaries or Affiliates, the Depositor will promptly give notice of any such filing or appointment to the Indenture Trustee. Within 15 days, the Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed Event, the Master Servicer shall only receive principal funds upon the transfer of Additional Balances to have been rescinded with respect to a Series if the TrusteeTrust from the Reserve Fund, at funded by the direction purchase of such Additional Balances by the Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"Class [ ] Certificate in accordance with Section 2.01(b); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bond Securitization LLC)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one Any of the following events (each occurrences shall constitute a "RAPID AMORTIZATION EVENTRapid Amortization ------------------ Event") shall occur:: -----
(a) any payment shall not be made failure on the date required under this Master Trust Agreement part of the Servicer or the applicable Supplement Seller (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments i) to make a payment or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date deposit required under the Master Trust Sale and Servicing Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) within five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
to be made or (bii) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Seller set forth in any Transaction Documentthe Sale and Servicing Agreement, which failure continues unremedied for a period of 30 60 days (PROVIDED, THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicablewritten notice;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other the Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, Sale and Servicing Agreement proves to have been incorrect in any material respect when made, the effect made and continues to be incorrect in any material respect for a period of 60 days after written notice and as a result of which the interests of the Noteholders or the Insurer are materially and adversely affected; provided, -------- however, that a Rapid Amortization Event shall result not be deemed to occur if such ------- representation or warranty relates to a Mortgage Loan and the Seller has reacquired or made a substitution for such Mortgage Loan during such period (or within an additional 60 days with the prior written consent of the Insurer) in accordance with the provisions of the Sale and Servicing Agreement;
(c) the entry of a Material Adverse Effectdecree or order for relief by a court having jurisdiction in respect of the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days;
(d) TMM the commencement by the Seller, of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or the consent by the Seller shall consent to the appointment of or taking possession by a receiver, conservator, receiver or liquidator in any bankruptcyliquidator, insolvencyassignee, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator custodian, sequestrator or receiver is appointed for, other similar official of the whole Seller or of any substantial part of its property or the assets making by the Seller of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment the failure by the Seller generally to pay its debts as such debts become due or the taking of its obligationscorporate or other organizational action by the Seller in furtherance of any of the foregoing;
(e) the Trust shall be required becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or (ii) under the Trust Indenture Actof 1940, as amended;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability occurrence of any Transaction Document or assert the matters set forth in SECTION 7.1(g) belowan Event of Servicing Termination;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation draw is made by or on behalf of a Person other than under the Trustee or any Certificateholder;Policy; or
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for a default in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess any interest on the Notes when the same becomes due and payable and the continuance of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, default for a period of sixty (60) calendar five days after the date of entry of such judgment or order;
(m) A a default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate payment in excess full of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate Note Balance on the maturity thereof or to permit Note Maturity Date. In the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico case of any of the Transaction Documents, shall have ceased to be event described in full force and effect in all material respects for a period of thirty clause (30a) days or more;
through (o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERg), a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clauses, herein or the Trustee, acting Sale and Servicing Agreement either (i)(A) the Insurer or (B) the Indenture Trustee or Noteholders evidencing at the direction least 51% of the Series Required Investor Certificateholders Note Balance, in each case, with the prior written consent of such Seriesthe Insurer, by written notice to the Sellers' Representative Insurer, the Seller, the Rating Agencies, and the Servicer (and to the "RAPID AMORTIZATION NOTICE") declares Indenture Trustee, if given by the Noteholders or the Insurer; provided that, in the event such a declaration is made by the Insurer, the Insurer shall give notice thereof to the Indenture Trustee and the Indenture Trustee shall forward such notice to each of the above-mentioned parties (including the Noteholders)) declare that a Rapid Amortization Event has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In or (ii) in the case of any event set forth described in SECTION 7.1(d) clause (h), the Indenture Trustee or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part Noteholders evidencing at least 51% of the Trustee immediately upon the occurrence of Note Balance by such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares declare that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event has occurred as of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result date of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Seriessuch notice.
Appears in 1 contract
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Servicer (i) to make any payment shall not be made or deposit required by the terms of this Agreement on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of occurring three (3) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
to be made herein or (bii) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail duly to duly observe or perform in any material respect any other covenant or agreement the covenants of the Sellers Servicer set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and which, in the case of clause (ii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Seller and the Port Option Agreement, as applicable) shall occur under Trustee by the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, the Servicer in this Agreement or Sellers' Representative) or any other Seller the Sellers in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves Purchase Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Credit Enhancer are materially and adversely affected, and shall result continue to be incorrect in any material respect and continue to affect materially and adversely the interests of the Investor Certificateholders or the Credit Enhancer for a Material Adverse Effectperiod of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Sellers or the Servicer, as the case may be, by the Trustee, or to the Sellers, the Servicer and the Trustee by either the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if a Seller has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in accordance with the provisions hereof;
(dc) TMM any Seller or any other Seller Bank One, N.A., as holder of the Transferor Interest, shall go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to any Seller or Bank One, N.A., as holder of the Transferor Interest, or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM any Seller or such other Seller Bank One, N.A., as holder of the Transferor Interest, and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofSeller or Bank One, or a trusteeN.A., administrator or receiver is appointed for, the whole or any substantial part as holder of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Transferor Interest, shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case1940, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurredamended; or
(se) a Receivable Shortfall Payment the aggregate of all draws under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. the Policy exceeds 1% of the Cut-Off Date Pool Balance; then, in the case of any event described in subparagraph (a) or (b) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Trustee, acting at the direction Credit Enhancer or the Holders of Certificates evidencing Percentage Interests aggregating more than 51%, by notice given in writing to the holder of the Series Required Investor Certificateholders of such SeriesTransferor Interest, by written notice the Depositor and the Servicer (and to the Sellers' Representative Trustee if given by either the Credit Enhancer or the Certificateholders) may declare that an early amortization event (the a "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraph (c), (d) or (g) abovee), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Credit Enhancer or the Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc One Abs Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occur:
(a) any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant or agreement of the Sellers in any Transaction Document, which failure continues unremedied for a period of 30 days (PROVIDED, THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicable;
(c) (i) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding- up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required to be registered (i) as an "investment company" within the meaning of the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 U.S.$10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR or (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR or (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) default in the payment of any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts Controlling Class Note when the same becomes due and payable or the failure to pay any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments installment of principal of the Controlling Class Notes in accordance with Section 5.03(b), and interest on any Distribution Date, such payment shall not be made default continues for a period of thirty (30) days after five Business Days, or a failure to pay the date required entire principal of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;.
(b) (i) TMM (failure on the part of the Issuer, the Depositor, the Master Servicer, the Seller or a Servicer, as a Sellerthe case may be, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the material covenants or agreement agreements of the Sellers Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, set forth in any Transaction Documentthe Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Transfer Agreement, the related Servicing Agreement or the Insurance Agreement, as the case may be, which failure materially and adversely affects the Noteholders or the Insurer and which continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Master Servicer, the earlier to occur of (x) actual knowledge by Seller or a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Master Servicer, the Seller or the Port Option Agreementa Servicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount of the Controlling Class Notes;
(c) (i) any representation the Issuer, the Master Servicer, the Depositor, the Seller or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) Servicer or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Depositor, the Seller or a Servicer or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Depositor, the Seller or such other Seller a Servicer and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Depositor, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) cumulative draws in respect of interest under the Trust Indenture Act;Policy exceed 1% of the aggregate Initial Pool Balance or there is any draw in respect of principal; and
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability an Event of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables Servicing Termination with respect to a Servicer pursuant to the Trust related Servicing Agreement or an Event of Master Servicer Termination pursuant to this Master Trust Agreement and has occurred. In the Receivables Sale Agreements shall generally cease to be an absolute assignment case of all right, title and interest any event described in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
clauses (h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(ca), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currenciesb), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, (e) and either (if) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthis Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Notes evidencing more than 50% of such Seriesthe Outstanding Amount of the Controlling Class Notes, in each case with the prior written consent of the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing and no Insurer Default has occurred and is continuing) or the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing and no Insurer Default has occurred and is continuing), by written notice to the Sellers' Representative Issuer, the Insurer, the Seller, and the Master Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, . If a Rapid Amortization Commencement Date has occurred with respect Event occurs due to such Series. In the case occurrence of any event set forth in SECTION 7.1(d(c) or (gd) above, a Rapid Amortization Commencement Date Event will automatically occur. Following the occurrence of a Rapid Amortization Event, if so directed by the Insurer, so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing and no Insurer Default has occurred and is continuing, the Indenture Trustee or its designated agent will and with the consent of the Insurer may, sell, dispose of or otherwise liquidate the Collateral with respect to all Series the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. With respect to the Notes, the net proceeds of such sale will be deemed paid (i) first, pro rata to have occurred the Indenture Trustee the Indenture Trustee Expense Amount (without regard the caps included in the definition of Indenture Trustee Expense Amount) and to the Owner Trustee any notice unpaid fees due and owing to it, (ii) second, to the Holders of the Class A Notes, insofar as may be necessary to reduce the Note Principal Balance of such Class, together with all accrued and unpaid interest due thereon, to zero, (iii) third, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, (iv) fourth, to the Holders of the Class M1 and Class M2 Notes sequentially in that order, pro rata within each Class based on Note Principal Balances, insofar as may be necessary to reduce the Note Principal Balance of each such Class, together with all accrued and unpaid interest due thereon, to zero, (v) fifth, pro rata to the Indenture Trustee and the Owner Trustee, any unreimbursed expenses due and owing to them, including, with respect to the Indenture Trustee, all unreimbursed expenses incurred by the Indenture Trustee in connection with such Rapid Amortization Event and sale of the Collateral and (vi) sixth, to the Residual Certificateholders, in the order and priority described in Section 5.03(b)(xv), any remaining amounts. In addition to the consequences of a Rapid Amortization Event discussed above, if the Seller, the Depositor or a Servicer or any other action their respective affiliates voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of such entity, on the part day of any such filing or appointment with respect to (i) the Seller, or any of its Subsidiaries or Affiliates, no further Additional Balances will be transferred to the Issuer and the Seller will promptly give notice of any such filing or appointment to the Indenture Trustee, (ii) a Servicer or any of its Subsidiaries or Affiliates, no further Additional Balances relating to Mortgage Loans serviced by such Servicer will be transferred to the Issuer and such Servicer will promptly give notice to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing) of any such filing or appointment and (iii) the Depositor or any of its Subsidiaries or Affiliates, the Depositor will promptly give notice of any such filing or appointment to the Indenture Trustee. Within 15 days, the Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed Event, the Servicer shall only receive principal funds upon the transfer of Additional Balances to have been rescinded with respect to a Series if the TrusteeTrust from the Reserve Fund, at funded by the direction purchase of such Additional Balances by the Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"Class L Certificate in accordance with Section 2.01(b); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Greenpoint Mortgage Funding Trust 2005-He3)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Transferor (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) occurring five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) to record assignments when required, or (iii) duly to observe or perform in any material respect the covenants of the Transferor set forth in Section 2.4(b) or any other Seller shall fail (iv) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Transferor set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (iv), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Transferor by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Transferor and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Transferor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect made and as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Investor Certificateholders or the Certificate Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Transferor by the Trustee, or to the Transferor and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage-Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor shall have accepted retransfer of the related Mortgage Loans or all Mortgage Loans if applicable during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other Seller the Transferor shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Transferor or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Transferor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Transferor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations (any such event, an "Insolvency Event");
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act of 1940, as amended;
(e) any Event of Default or Trigger Event (iiother than the event described in clause (iv) under of the Trust Indenture Actdefinition thereof) shall occur;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability aggregate of any Transaction Document or assert Certificate Insurance Draw Amounts exceeds 1% of the matters set forth in SECTION 7.1(g) below;Pool Balance as of the Cut-Off Date; or
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all rightif at any time, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received Liquidation Loss Amounts incurred by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, exceed $1,204,600 and either (i) such judgment was prosecuted by there exists any creditor unreimbursed draw under the Certificate Insurance Policy or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer Excess Spread Conditions is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Datessatisfied. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Certificate Insurer, the Trustee or the Holders of Investor Certificates evidencing Percentage Interests aggregating more than 51%, by notice given in writing to the Servicer (and to the Trustee, acting at if given by either the direction of Certificate Insurer or the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative Certificateholders) may declare that an early amortization event (the a "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraphs (c), (d), (f) or (g) above), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capitol Revolving Home Equity Loan Trust 1996-1)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Seller (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of occurring three (3) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
to be made herein or (bii) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Seller set forth in any Transaction Documentthe Purchase Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and which, in the case of clause (ii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Seller and the Port Option Agreement, as applicable) shall occur under Trustee by the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other the Seller in any Transaction Document the Purchase Agreement or the Depositor in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Credit Enhancer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Credit Enhancer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Seller or the Depositor, as the case may be, by the Trustee, or to the Seller, the Depositor and the Trustee by either the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Transferor or any other Seller the Depositor shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Transferor or the Depositor, or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Transferor or such other Seller the Depositor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, the Transferor or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;; or
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case1940, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effectamended; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a) or (b) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Trustee, acting at the direction Credit Enhancer or the Holders of the Series Required Investor Certificateholders of such SeriesCertificates evidencing Percentage Interests aggregating more than 51%, by written notice given in writing to the Sellers' Representative Transferor, the Depositor and the Master Servicer (and to the Trustee if given by either the Credit Enhancer or the Investor Certificateholders) may declare that an early amortization event (a "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraph (c) or (g) aboved), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Credit Enhancer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Servicer (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement occurring five (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (35) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) duly to observe or perform in any other Seller shall fail material respect the covenants set forth in Section 2.04 or (iii) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Servicer set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (iii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 sixty (60) days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Servicer and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Servicer in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Investor Certificateholders or the Certificate Insurer for a period of sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Servicer have accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee, with the consent of the Certificate Insurer, may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Seller or any other Seller the Servicer shall go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Seller or the Servicer or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Seller or such other Seller the Servicer and such action is not discharged within sixty decree or order shall have remained in force undischarged or unstayed for a period of thirty (6030) days; or any encumbrancer takes possession of, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or of 1940, as amended;
(iie) under the Trust Indenture Actany Event of Default shall occur;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability aggregate of any Transaction Document or assert Insured Payments under the matters set forth in SECTION 7.1(g) below;Certificate Insurance Policy exceeds 1% of the Pool Balance as of the Cut-off Date; or
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; Seller or the Trustee, on behalf of the Trust, shall cease Servicer becomes subject to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are tax lien and not removed released within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effectattachment; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace period, if any, set forth above other in such subparagraphs, either the Certificate Insurer, the Trustee or the Holders of Investor Certificates evidencing Percentage Interests aggregating more than 51%, with the consent of the Certificate Insurer, by notice given in SECTION 7.1(dwriting to the Seller and the Servicer (and to the Trustee if given by either the Certificate Insurer or the Investor Certificateholders) or SECTION 7.1(g), may declare that an early amortization event (a "Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICEEvent") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraphs (c), (d), (f) or (g) above), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following ------------------------- events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Transferor or the Seller (i) to make any payment shall not be made on or deposit required by the date required under terms of this Master Trust Agreement or the applicable Supplement (includingInsurance Agreement, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments within two Business Days after notification thereof such payment or prepayments deposit is required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorherein, or Sellers' Representative(ii) duly to observe or perform in any material respect the covenants of the Transferor set forth in Section 2.04(a) or any other Seller shall fail (iii) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Transferor set forth in any Transaction Documentthis Agreement or the Insurance Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and which, in the case of clause (iii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Transferor by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Transferor and the Port Option Agreement, as applicable) shall occur under Trustee by the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Voting Rights aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, the Transferor or Sellers' Representative) the Depositor in this Agreement or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves Insurance Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Credit Enhancer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Credit Enhancer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Transferor or the Depositor, as the case may be, by the Trustee, or to the Transferor, the Depositor and the Trustee by either the Credit Enhancer or the Holders of Investor Certificates evidencing Voting Rights aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this -------- ------- subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effect;accordance with the provisions hereof; 104
(dc) TMM the Transferor, the Seller or the Depositor or any other Seller of their Subsidiaries or Affiliates shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Transferor or the Depositor, or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Transferor or such other Seller the Depositor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed forthe Transferor, the whole Seller or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or of 1940, as amended;
(iie) the aggregate of all draws under the Trust Indenture ActPolicy exceeds 1% of the Initial Cut-Off Date Pool Balance;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, transaction documents shall have ceased cease to be in full force and effect or the security interest of the Trustee in all material respects for the Trust shall cease to be a period of thirty (30) days or morefirst priority perfected security interest;
(og) the occurrence of a Change in Control with respect to the Headlands;
(h) the occurrence of any material breach by Headlands of the provisions of its Credit Agreements during the term of the Trust;
(i) failure by the Servicer, if the Servicer is TMMHeadlands, any Servicer Default shall occur to maintain a minimum volume in its mortgage servicing portfolio of $2 billion, calculated by outstanding principal balances of mortgage loans serviced, in accordance with the Servicer's credit and be continuingcollection policy;
(pj) at the end of each calendar quarter commencing on any two consecutive Determination DatesMarch 30, 1997, failure by Headlands to maintain (Aa) the Receivables Coverage Ratio shall be less than 2.00:1.00 "shareholder's equity" according to GAAP, of $15 million 105 or (Bb) the Generation Coverage Ratio shall be less than 2.25:1.00a maximum ratio of total liabilities to shareholder's equity according to GAAP of 20 to 1;
(qk) any Obligor Agreement relating the failure by the Seller or the Servicer to Purchased Receivables (A) is terminated implement the CPI servicing system or not renewed prior a servicing system mutually acceptable to the Series 2001-A Termination Servicer and the Certificate Insurer within 90 days after the availability of the system;
(l) for each Distribution Date commencing on the third Distribution Date, the percentage equivalent of a fraction the numerator of which is equal to the average of the aggregate Asset Balances on such date of all Mortgage Loans with respect to which principal or interest are at least 60 days delinquent as of the last day of each of the three immediately preceding Collection Periods, and the denominator of which is equal to the average of the Pool Balance as of the last day of each of the three immediately preceding Collection Periods shall exceed 4%; or
(Bm) for each Distribution Date commencing on the third Distribution Date, the percentage equivalent of a fraction, the numerator of which is equal to the average of the aggregate Asset Balances on such date of all defaulted Mortgage Loans (excluding Liquidated Mortgage Loans) as to which (i) collection procedures are ongoing and (ii) the Servicer has charged off all or a portion of the related Asset Balance as of the last day of each of the three immediately preceding collection Periods, and the denominator of which is equal to the average of the Pool Balance as of the last day of each of the three immediately preceding Collection Periods shall exceed 2%. In the case of any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERevent described above, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clauses, either (i) the Trustee, acting at Trustee or Certificateholders holding Certificates evidencing in the direction aggregate more than 51% of the Series Required Investor Certificateholders Voting Rights, with the consent of such Seriesthe Certificate Insurer, or (ii) the Certificate Insurer (so long as there is no default by the Certificate Insurer in the performance of its obligations under the Policy), by written notice to the Sellers' Representative Servicer (and to the "RAPID AMORTIZATION NOTICE"Trustee, if given by the Certificateholders) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice; provided that with respect to -------- clauses (c), (d) and (e) a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee Event shall occur immediately upon the occurrence of such, without any such eventnotice. In addition, the case of any event set forth above other than in SECTION 7.1(d), Certificate Insurer may declare a Rapid Amortization Commencement Date Event to have occurred as of the date of notice thereof upon the occurrence of a Trigger Event other than as set forth at Sections 6.01(ii), (iv) or (v) of the Insurance Agreement. 106 In addition to the consequences of a Rapid Amortization Event discussed above, if the Transferor voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Transferor, on the day of any such filing or appointment no further Additional Balances will be deemed transferred to have been rescinded with respect the Trust, the Transferor will immediately cease to a Series if transfer Additional Balances to the Trustee, at Trust and the direction of the Series Required Investor Certificateholders of such Series, by written Transferor will promptly give notice to the Sellers' RepresentativeTrustee and the Certificate Insurer of any such filing or appointment. Within 15 days, declares the Trustee will publish a notice of the liquidation or the filing or appointment stating that the Trustee intends to sell, dispose of or otherwise liquidate the Mortgage Loans in a commercially reasonable manner and to the best of its ability. Unless otherwise instructed within a specified period by Certificateholders evidencing in the aggregate more than 51% of the Voting Rights, the Trustee will sell, dispose of or otherwise liquidate the Mortgage Loans to a purchaser in a commercially reasonable manner and on commercially reasonable terms; provided, however, that the Credit -------- ------- Enhancer's consent to the terms of any such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written noticesale shall be required, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice which consent shall not affect a Rapid Amortization Notice given with respect to any other Seriesbe unreasonably withheld. Any Waiver Notice shall proceeds will be given within treated as collections allocable to the period commencing Certificateholders and will be distributed to the Certificateholders on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date proceeds are received (the "NOTICE PERIODDissolution Distribution Date"). During The proceeds from the Notice Period with respect sale, disposition or liquidation of the Mortgage Loans will first be paid to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until Insurer to the amount on deposit in extent of unreimbursed draws under the applicable Certificate Account equals an amount sufficient Policy and other amounts owing to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions Insurer pursuant to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution DateInsurance Agreement. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a conservator, receiver or trustee-in- bankruptcy is appointed for the Transferor and no Rapid Amortization Event exists other than such conservatorship, receivership or insolvency of the type Transferor, the conservator, receiver or trustee-in-bankruptcy may have the power to prevent the commencement of the Rapid Amortization Period or the sale of Mortgage Loans described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Seriesabove.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the The following events (each a "RAPID AMORTIZATION EVENT") shall occurconstitute Rapid Amortization Events:
(a) any payment shall not be made failure on the date required under this Master Trust Agreement part of Sponsor (i) to make a payment or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date deposit required under the Master Trust Sale and Servicing Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) within four Business Days after the date such payment or deposit is required in this Master Trust Agreement;
to be made or (bii) (i) TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Sponsor set forth in any Transaction Documentthe Sale and Servicing Agreement, which failure continues unremedied for a period of 30 60 days (PROVIDED, THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person by the Trusteewritten notice; or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicable;77 84
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Sponsor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, Sale and Servicing Agreement proves to have been incorrect in any material respect when made, the effect made and continues to be incorrect in any material respect for a period of 60 days after written notice and as a result of which the interests of the Holders or the Insurer are materially and adversely affected: provided, however, that a Rapid Amortization Event shall result not be deemed to occur if the Sponsor has purchased or made a substitution for the related Mortgage Loan or Mortgage Loans if applicable during such period (or within an additional 60 days with the consent of the Indenture Trustee and the Insurer) in a Material Adverse Effectaccordance with the provisions of the Sale and Servicing Agreement;
(c) the occurrence of certain events of bankruptcy, insolvency or receivership relating to the Originator;
(d) TMM or any other Seller shall consent to the appointment of a conservator, receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) under the Trust Indenture Actoccurrence of an event permitting the removal of the Master Servicer;
(f) TMM default in the payment of any interest, principal or any other Seller shallinstallment of principal on any Note when the same becomes due and payable, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability and such default continues for a period of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;five days; and
(g) the assignment aggregate of all draws under the Policy exceeds 1% of the Purchased Receivables to Cut-Off Date Pool Balance. In the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment case of all right, title and interest any event described in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
clause (h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(ca), on any Determination Date(b), the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%e) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currenciesg), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described herein or in such clauses, the Trustee, acting at Indenture or Sale and Servicing Agreement either (i) the direction Indenture Trustee or Holders holding Class A Notes evidencing more than 51% of the Series Required Investor Certificateholders aggregate principal amount of such Seriesthe Class A Notes with the consent of the Insurer (so long as there is no continuing default by the Insurer in the performance of its obligations under the Policy) or the Insurer (so long as there is no continuing default by the Insurer in the performance of its obligations under the Policy), by written notice to the Sellers' Representative Insurer, the Sponsor, the Originator, the Rating Agencies, and the Master Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Holders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth described in SECTION 7.1(dclause (c), (d) or (g) abovef), a Rapid Amortization Commencement Date with respect to all Series Event will be deemed to have occurred without any notice or other action on the part of the Trustee Indenture Trustee, the Holders or the Insurer immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice addition to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date consequences of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event discussed above, if (i) a default in the payment of the type described at SECTION 7.1(a)Class A Interest Distribution Amount occurs on any Payment Date and continues for a period of five days or (ii) the Originator voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Originator, (b) OR (c) above arises solely as a result on the day of a failure any such filing or appointment no further Additional Balances will be transferred to pay or perform or a breach with respect the Trust, and the Originator will promptly give notice to terms or conditions of a Supplement relating to another Series.the Indenture Trustee and
Appears in 1 contract
Samples: Indenture (Advanta Revolving Home Equity Loan Trust 1998-A)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Revolving Period or the Managed Amortization Period:
(a) failure on the part of the Servicer (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement occurring five (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (35) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) or any other Seller shall fail duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Servicer set forth in any Transaction Documentthis Agreement, which failure failure, in the case of clause (ii), materially and adversely affects the interests of the Certificateholders or the Certificate Insurer, and continues unremedied for a period of 30 sixty (60) days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer by the Trustee; , the Certificate Insurer or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableCertificateholders evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Servicer in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Certificate Insurer for a period of sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by either the Certificate Insurer or Certificateholders evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor has accepted transfer of the related Home Equity Loan or Home Equity Loans during such period (or such longer period (not to exceed an additional sixty (60) days) as the Trustee, with the consent of the Certificate Insurer, which consent shall not be unreasonably withheld, may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other Seller the Transferor shall go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Transferor of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Transferor and such action is not discharged within decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Transferor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or of 1940, as amended;
(iie) under the Trust Indenture Act;any Servicer Default shall occur; or
(f) TMM or any other Seller shall, the occurrence of a "Trigger Event" specified in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment Section 6.1 of the Purchased Receivables to the Trust pursuant to this Master Trust Insurance Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to which the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereofCertificate Insurer may declare, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERhas declared, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurredoccur; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace or cure period, if any, set forth above other in such subparagraphs, either the Trustee or Certificateholders evidencing Percentage Interests aggregating not less than 51% or the Certificate Insurer (so long as there is no default by the Certificate Insurer in SECTION 7.1(d) or SECTION 7.1(gthe performance of its obligations under the Certificate Insurance Policy), by notice given in writing to the Transferor and Servicer (and to the Trustee if given by either the Certificate Insurer or the Certificateholders) may declare that a Rapid Amortization Commencement Date will be deemed to have Event has occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth described in SECTION 7.1(dsubparagraphs (c) or (g) aboved), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than described in SECTION 7.1(dsubparagraph (f), a Rapid Amortization Commencement Date will Event shall be deemed to have been rescinded with respect to a Series occurred only if, after the applicable grace or cure period, if any, set forth in the TrusteeInsurance Agreement, at the direction of the Series Required Investor Certificateholders of such Series, by Certificate Insurer gives written notice to the Sellers' RepresentativeTransferor, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred Servicer and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Serieshas occurred.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inves Inc Providian Home Eq Ln Tr 1999-1)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) default in the payment of any payment shall not be made interest on the date required under this Master Trust Agreement Notes when the same becomes due and payable or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments failure to pay any installment of principal of the Notes in accordance Section 5.03(b) of this Agreement, and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments such default or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made failure continues for a period of thirty (30) days after five Business Days, or a failure to pay the date required entire Note Principal Amount of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a failure on the part of the Issuer, the Depositor, the Seller, Guarantor, or Sellers' Representative) the Servicer or any other Seller shall fail Originator to duly observe or perform in any material respect any other covenant material covenants or agreement of agreements set forth in the Sellers in any Transaction DocumentMortgage Loan Sale Agreement, this Agreement, the Indenture or the related Transfer Agreement, as the case may be, which failure materially and adversely affects the Noteholders or the Insurers and continues unremedied for a period of 30 days (PROVIDED, THAT, with respect after written notice of such failure requiring the same to be remedied shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Depositor, the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller, the Servicer or any Originator as the case may be, by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement Indenture Trustee or the Port Option Agreement, as applicable) shall occur under Insurers in accordance with the Option Agreement or provisions of the Port Option Agreement, as applicableIndenture;
(c) (i) any representation or warranty made by TMM (as a Sellerthe Issuer, Guarantorthe Servicer, the Depositor, or Sellers' Representative) the Seller or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Servicer, the Depositor, or the Seller or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Servicer, the Depositor, or such other the Seller and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Servicer, the Depositor, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) any draw under the Trust Indenture Act;either Policy remains unreimbursed for a period of 90 days; or
(f) TMM or any other Seller shallAn Event of Servicer Termination under this Agreement, in any court or other governmental proceeding, contest in any manner has occurred. In the validity, binding nature, or enforceability case of any Transaction Document or assert the matters set forth event described in SECTION 7.1(g) below;
clauses (g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(ca), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currenciesb), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, (e) and either (if) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthis Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Notes evidencing more than 50% of such Seriesthe Outstanding Amount of the Notes, in each case with the prior written consent of the Controlling Insurer, or the Controlling Insurer, by written notice to the Sellers' Representative Issuer, the Insurers, the Seller, and the Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Controlling Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, . If a Rapid Amortization Commencement Date has occurred with respect Event occurs due to such Series. In the case occurrence of any event set forth in SECTION 7.1(d(c) or (gd) above, a Rapid Amortization Commencement Date Event will automatically occur. If the Seller, the Depositor or the Servicer or any other their respective affiliates voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of such entity, on the day of any such filing or appointment with respect to all Series (i) the Seller, or any of its Subsidiaries or Affiliates, no further Additional Balances will be deemed transferred to have occurred without the Issuer and the Seller will promptly give notice of any such filing or appointment to the Indenture Trustee, (ii) the Servicer or any of its Subsidiaries or Affiliates, no further Additional Balances relating to Loans serviced by the Servicer will be transferred to the Issuer and the Servicer will promptly give notice to the Indenture Trustee and the Insurers (so long as the Notes are Outstanding or other action on any Reimbursement Amounts remain due and owing to an Insurer) of any such filing or appointment and (iii) the part Depositor or any of its Subsidiaries or Affiliates, the Depositor will promptly give notice of any such filing or appointment to the Indenture Trustee. Within 15 days, the Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed Event, the Servicer shall only receive principal funds upon the transfer of Additional Balances to have been rescinded with respect to a Series if the TrusteeTrust from the Reserve Fund, at funded by the direction purchase of such Additional Balances by the Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"Class L Certificate in accordance with Section 2.01(b); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Greenpoint Mortgage Funding Trust 2006-He1)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccurs during the Managed Amortization Period:
(a) The failure of the Sponsor or the Master Servicer to make any payment shall not be made on the date or deposit required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal Sale and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Servicing Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of within three (3) Business Days after the date payment or deposit was required in this Master Trust Agreementto be made;
(b) (i) TMM (as a Seller, Guarantor, The failure of the Sponsor or Sellers' Representativethe Master Servicer to cause the Depositor to observe or perform in any material respect the covenants of the Depositor in Section 2.01(h) or any other Seller shall fail 2.05 of the Sale and Servicing Agreement;
(c) The failure of the Sponsor to duly observe or perform in any material respect any other covenant or agreement covenants of the Sellers Sponsor in any Transaction Document, which failure the Sale and Servicing Agreement that materially and adversely affects the interests of the Noteholders and that continues unremedied and continues to affect materially and adversely the interests of the Noteholders for a period of 30 60 days (PROVIDED, THAT, with respect five days in the case of any failure to transfer to the covenant set forth Trust Eligible Substitute Mortgage Loans or deposit into the Collection Account the Transfer Deposit Amount in SECTION 3.2(zaccordance with Section 2.07(a) hereof of the period shall be seven (7) daysSale and Servicing Agreement) after the earlier date on which written notice of the failure, requiring it to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof be remedied, shall have been given to such Person the Sponsor by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Sponsor and the Port Option Agreement, as applicable) shall occur under Indenture Trustee by the Option Agreement or Holders of not less than 51% of the Port Option Agreement, as applicableaggregate Outstanding Amount of all Classes of Notes;
(cd) (i) any Any representation or warranty made by TMM (as a Seller, Guarantor, the Sponsor or Sellers' Representative) or any other Seller the Depositor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, Sale and Servicing Agreement proves to have been incorrect in any material respect when made, the effect as a result of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent the interests of the Noteholders are materially and adversely affected and that continues to the appointment of a conservator, receiver or liquidator be incorrect in any bankruptcymaterial respect and continues to affect materially and adversely the interests of the Noteholders for 60 days after the date on which notice of the failure, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating requiring it to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairsbe remedied, shall have been entered against TMM given to the Sponsor or the Depositor, as the case may be, by the Indenture Trustee, or to the Sponsor, the Depositor, and the Indenture Trustee by the Holders of not less than 51% of the aggregate Outstanding Amount of all Classes (a Rapid Amortization Event pursuant to this subparagraph (d) shall not occur if the Sponsor has accepted retransfer of the related Mortgage Loans or substituted for them during the 60-day period (or such other Seller longer period (not to exceed an additional 60 days) as the Indenture Trustee may specify) in accordance with the Sale and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsServicing Agreement);
(e) An Insolvency Event occurs with respect to the Trust holder of the Class R-[1] Certificates or the Depositor, but for this purpose the 60-day periods in the definition of Insolvency Event shall be required 30 days; or
(f) The Trust becomes subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below1940;
(g) The Rapid Amortization Delinquency Trigger Event or the assignment Rapid Amortization Cumulative Loss Trigger Event has occurred and is continuing; then, when any event described in subparagraph (a), (b), (c), (d), or (g) occurs, either the Indenture Trustee or the Holders of not less than 51% of the Purchased Receivables aggregate Outstanding Amount of all Classes, by notice given in writing to the Trust pursuant to this Master Trust Agreement holder of the Class R-[1] Certificates, the Depositor, and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in Master Servicer (and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Indenture Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received if given by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(jNoteholders) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur may declare that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such an early amortization event (excluding any amount attributable to goodwill or other intangible assetsa "Rapid Amortization Event") has occurred as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiariesthe notice, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or and in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico case of any of the Transaction Documents, shall have ceased to be event described in full force and effect in all material respects for a period of thirty subparagraph (30e) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERf), a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Indenture Trustee or the Noteholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Seriesits occurrence.
Appears in 1 contract
Samples: Indenture (CWHEQ, Inc.)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Transferor (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) occurring five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) to record assignments when required, or (iii) duly to observe or perform in any material respect the covenants of the Transferor set forth in Section 2.4(b) or any other Seller shall fail (iv) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Transferor set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (iv), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Transferor by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Transferor and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Transferor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect made and as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Investor Certificateholders or the Certificate Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Transferor by the Trustee, or to the Transferor and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage-Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor shall have accepted retransfer of the related Mortgage Loans or all Mortgage Loans if applicable during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other Seller the Transferor shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Transferor or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Transferor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Transferor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations (any such event, an "Insolvency Event");
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act of 1940, as amended;
(e) any Event of Default or Trigger Event (iiother than the event described in clause (iv) under of the Trust Indenture Actdefinition thereof) shall occur;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability aggregate of any Transaction Document or assert Certificate Insurance Draw Amounts exceeds 1% of the matters set forth in SECTION 7.1(g) below;Pool Balance as of the Initial Cut-Off Date; or
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all rightif at any time, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received Liquidation Loss Amounts incurred by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, exceed $4,450,600 and either (i) such judgment was prosecuted by there exists any creditor unreimbursed draw under the Certificate Insurance Policy for a period of six months or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer Excess Spread Conditions is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effectsatisfied; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Certificate Insurer, the Trustee or the Holders of Investor Certificates evidencing Percentage Interests aggregating more than 51%, by notice given in writing to the Servicer (and to the Trustee, acting at if given by either the direction of Certificate Insurer or the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative Certificateholders) may declare that an early amortization event (the a "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraphs (c), (d), (f) or (g) above), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chevy Chase Bank FSB)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Servicer (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement occurring five (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (35) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) duly to observe or perform in any other Seller shall fail material respect the covenants set forth in Section 2.04 or (iii) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Servicer set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (iii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 sixty (60) days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Servicer and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Servicer in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Investor Certificateholders or the Certificate Insurer for a period of sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Servicer has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee, with the consent of the Certificate Insurer, may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Transferor or any other Seller the Servicer shall go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Transferor or the Servicer or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Transferor or such other Seller the Servicer and such action is not discharged within sixty decree or order shall have remained in force undischarged or unstayed for a period of thirty (6030) days; or any encumbrancer takes possession of, the Transferor or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or of 1940, as amended;
(iie) under the Trust Indenture Actany Event of Default shall occur;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability aggregate of any Transaction Document or assert Insured Payments under the matters set forth in SECTION 7.1(g) below;Certificate Insurance Policy exceeds 1% of the Pool Balance as of the Cut-off Date; or
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; Transferor or the Trustee, on behalf of the Trust, shall cease Servicer becomes subject to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are tax lien and not removed released within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effectattachment; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a), (b) or (e) after the applicable grace period, if any, set forth above other in such subparagraphs, either the Certificate Insurer, the Trustee or the Holders of Investor Certificates evidencing Percentage Interests aggregating more than 51%, with the consent of the Certificate Insurer, by notice given in SECTION 7.1(dwriting to the Transferor and the Servicer (and to the Trustee if given by either the Certificate Insurer or the Investor Certificateholders) or SECTION 7.1(g), may declare that an early amortization event (a "Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICEEvent") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraphs (c), (d), (f) or (g) above), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) failure on the part of the Issuer, the Sponsor or the Servicer, as the case may be, (i) to make any payment shall not be made on or deposit required by the date required under terms of this Master Trust Indenture, the Sale and Servicing Agreement or the applicable Supplement (includingInsurance Agreement, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments within two Business Days after notification that such payment or prepayments deposit is required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantormade, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Sponsor or the Servicer, as the case may be, set forth in any Transaction Documentthe Sale and Servicing Agreement or the Insurance Agreement or this Indenture, which failure as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Sponsor or the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Sponsor or the Port Option AgreementServicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (ib) any representation or warranty made by TMM (the Issuer, the Sponsor or the Servicer, as the case may be, in this Indenture, the Sale and Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a Sellerresult of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, Guarantorrequiring the same to be remedied, shall have been given to the Issuer, the Sponsor or the Servicer, as the case may be, by the Indenture Trustee, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Issuer, the Sponsor or the Servicer, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Notes evidencing more than 50% of the Outstanding Amount; PROVIDED, HOWEVER, that with respect to any such representation or warranty made with respect to the Purchased Receivablesrelated Mortgage Loans, proves a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have been incorrect when made, occurred hereunder if the effect Servicer or the Sponsor has accepted retransfer of which shall result such related Mortgage Loan or related Mortgage Loans during such period (or such longer period not to exceed an additional 60 days as the Indenture Trustee may specify with the consent of the Insurer) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Servicer, the Sponsor or the Issuer or any other Seller of their Subsidiaries or Affiliates shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer, the Sponsor or the Trust or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Servicer, the Sponsor of the Trust and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed forthe Servicer, the whole Sponsor or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Trust shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) any draw is made under the Trust Indenture ActPolicy with respect to any Class;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability an Event of any Transaction Document or assert the matters set forth in SECTION 7.1(g) belowServicing Termination has occurred;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest default in the Purchased Receivables for purposes payment of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which any Deferred Interest on the assertion of such cessation is made by or Class A Notes on behalf of a Person other than the Trustee or any Certificateholder;Final Maturity Date; and
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for default in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies)any interest, taken together with any other judgment or order then outstanding, shall have been entered against TMM principal or any installment of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereofprincipal on the Notes when the same becomes due and payable, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, default continues for a period of sixty (60) calendar days after five Business Days. In the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico case of any of the Transaction Documents, shall have ceased to be event described in full force and effect in all material respects for a period of thirty clauses (30a) days or more;
through (oh) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthe Indenture or Sale and Servicing Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Class A Notes evidencing more than 50% of such Seriesthe outstanding principal balance of the Class A Notes, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is continuing or unless a Rapid Amortization Event described in clause (g) above has occurred) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Sellers' Representative Trust, the Insurer, the Sponsor, and the Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice. If so directed by the Insurer, so long as no Insurer Default has occurred and is continuing, the Indenture Trustee will and the Insurer (so long as no Insurer Default has occurred and is continuing) or Holders holding Class A Notes evidencing more than 50% of the outstanding principal balance of the Class A Notes (if a Rapid Amortization Commencement Date Event described in clause (g) above has occurred occurred) shall have the right to direct the Indenture Trustee to sell, dispose of or otherwise liquidate the Trust Property with respect to the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. So long as no Event of Servicing Termination has occurred and is continuing, any such Seriessale, disposal or liquidation will be "servicing retained" by the Servicer. With respect to the Notes, the net proceeds of such sale will be paid (i) first, to the Holders of the Notes insofar as may be necessary to reduce the principal balance of such Class, together with all accrued and unpaid interest due thereon, to zero, (ii) second, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, and (iii) third, to the Residual Certificateholder. In addition to the case consequences of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series Event discussed above, if the Sponsor voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Sponsor, on the day of any such filing or appointment no further Additional Balances will be deemed transferred to have occurred without the Trust and the Sponsor will promptly give notice to the Indenture Trustee and the Insurer of any notice such filing or other action on appointment. Within 15 days, the part Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events shall occur during the Revolving Period (each each, a "RAPID AMORTIZATION EVENT") shall occur:“Rapid Amortization Event”):
(a) the Three-Month Average Default Percentage as of the last day of any payment Monthly Period shall not exceed 20.0%;
(b) the Three-Month Average Principal Payment Rate as of the last day of any Monthly Period shall be made less than 10.0%;
(c) the occurrence of a Servicer Default or an Event of Default;
(d) either (x) a failure on the date required under this Master Trust part of the Depositor duly to observe or perform any other covenants or agreements of the Depositor set forth in the Transfer Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments Transaction Document to which it is a party, or prepayments required (y) a failure on the part of the Seller duly to be made observe or perform any other covenants or agreements of the Seller set forth in the Purchase Agreement or any other Transaction Document to which it is a party, which failure, in any such case, has a material adverse effect on the interests of the Noteholders (as reasonably determined by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal Required Noteholders) and interest on any Distribution Date, such payment shall not be made which continues unremedied for a period of thirty (30) days after the date required under on which the Master Trust Agreement and in the case of any payment of principal Depositor or interest on a Distribution DateSeller, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreementas applicable, receives actual knowledge or written notice thereof;
(be) either (ix) TMM (as a Sellerany representation, Guarantor, warranty or Sellers' Representative) certification made by the Depositor in the Transfer Agreement or any other Seller shall fail Transaction Document to duly observe which it is a party or perform in any material respect certificate delivered pursuant to the Transfer Agreement shall prove to have been inaccurate when made or deemed made or (y) any representation, warranty or certification made by the Seller in the Purchase Agreement or any other covenant Transaction Document to which it is a party or agreement of the Sellers in any Transaction Documentcertificate delivered pursuant to the Purchase Agreement shall prove to have been inaccurate when made or deemed made and, in any such case, such inaccuracy has a material adverse effect on the Noteholders (as reasonably determined by the Required Noteholders) and which failure continues unremedied for a period of 30 thirty (30) days (PROVIDED, THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person by date on which the Trustee; Depositor or (ii) an Exercise Event (as such term is defined in the Option Agreement or the Port Option AgreementSeller, as applicable) shall occur under the Option Agreement , receives actual knowledge or the Port Option Agreement, as applicable;
(c) (i) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to all or substantially all of its propertywritten notice thereof; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding4166-up or liquidation of its affairs, shall have been entered against TMM or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required to be registered (i) as an "investment company" within the meaning of the Investment Company Act or (ii) under the Trust Indenture Act;0661-7649.19
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination DateSeller, the currency of any Collections received by Depositor, the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM Servicer or any of its Restricted their respective Subsidiaries, individually or in the aggregate, shall fail to pay any other Seller principal of or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor premium or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or interest on any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries Indebtedness that is outstanding in a principal amount of at least $10,000,000 in the aggregate when the same becomes due and payable (whether at stated by scheduled maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in and such failure shall continue after the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consentapplicable grace period, if any, required by specified in the laws of Mexico agreement, mortgage, indenture or instrument relating to enable TMM such Indebtedness (whether or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, not such failure shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if been waived under the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Datesrelated agreement). then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative clause (the "RAPID AMORTIZATION NOTICE"a) declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or through (gf) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Indenture Trustee or the affected Holders immediately upon the occurrence of such event. In the case of The Required Noteholders may waive any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Seriesand its consequences.
Appears in 1 contract
Samples: Indenture (Oportun Financial Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, default in the case payment of any payment other than payments of principal interest when the same becomes due and interest on any Distribution Date, payable and such payment shall not be made default continues for a period of thirty (30) days after five Business Days or a failure to pay the date required entire principal of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;.
(b) failure on the part of the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, (i) TMM (to make any payment or deposit required by the terms of the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as a Sellerapplicable, Guarantorwithin two Business Days after notification that such payment or deposit is required to be made, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, set forth in any Transaction Documentthe Mortgage Loan Sale Agreement, which failure Transfer and Servicing Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement, as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Master Servicer, the earlier to occur of (x) actual knowledge by Seller or a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Master Servicer, the Seller or the Port Option Agreementa Servicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (i) any representation the Issuer, the Master Servicer, the Seller or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) Servicer or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Seller or a Servicer or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Seller or such other Seller a Servicer and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(d) any representation or warranty made by the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, in this Indenture, the Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a result of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, by the Indenture Trustee, or to the Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Notes evidencing more than 50% of the Outstanding Amount;
(e) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or (ii) under the Trust Indenture Actof 1940, as amended;
(f) TMM cumulative draws in respect of interest under the Policy exceed 1% of the aggregate Cut-off Date Pool Balance or there is any other Seller shall, draw in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability respect of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;principal; and
(g) the assignment an Event of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Servicing Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice Servicer pursuant to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as related Servicing Agreement or an Event of the date of such notice, a Rapid Amortization Commencement Date Master Servicing Termination pursuant to this Agreement has occurred with respect to such Seriesoccurred. In the case of any event set forth described in SECTION 7.1(dclauses (a), (b), (e), (f) or and (g) above, a Rapid Amortization Commencement Date with respect to all Series Event will be deemed to have occurred without only if, after the applicable grace period, if any, described in the Indenture or Transfer and Servicing Agreement, any of the Indenture Trustee or Holders holding Notes evidencing more than 50% of the Outstanding Amount, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is continuing) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Issuer, the Insurer, the Sponsor, and the Servicer (and to the Indenture Trustee, if given by the Noteholders or other action the Insurer) declare that a Rapid Amortization Event has occurred as of the date of such notice. If a Rapid Amortization Event occurs solely due to either: (1) a failure on the part of one of the Servicers with respect to (b) above or (2) the occurrence of the event described in (f) above only with respect to one of the Servicers, a Rapid Amortization Event will only apply to the Mortgage Loans serviced by such Servicer. Following the occurrence of a Rapid Amortization Event (except for an event with respect to [_________] only described in either (b) or (g) above), if so directed by the Insurer, so long as no Insurer Default has occurred and is continuing, the Indenture Trustee immediately upon will sell, dispose of or otherwise liquidate the Collateral with respect to the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. With respect to the Notes, the net proceeds of such sale will be paid (i) first, pro rata to the Indenture Trustee the Indenture Trustee Expense Amount and any unpaid fees due and owing and to the Owner Trustee any unpaid fees due and owing, (ii) second, to the Holders of each class of Notes, pro rata based on Note Principal Balances, insofar as may be necessary to reduce the Note Principal Balance of such class, together with all accrued and unpaid interest due thereon, to zero, (iii) third, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, (iv) fourth, to the Indenture Trustee and the Owner Trustee, any unreimbursed expenses due and owing, including, with respect to the Indenture Trustee, all unreimbursed expenses incurred by the Indenture Trustee in connection with such Rapid Amortization Event and sale of the Collateral and (v) fifth, to the Residual Certificateholders, in the order and priority described in Section 5.03(b)(xi), any remaining amounts. In addition to the consequences of a Rapid Amortization Event discussed above, if the Seller or a Servicer voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Seller or a Servicer, on the day of any such filing or appointment with respect to (i) the Seller, no further Additional Balances will be transferred to the Issuer and the Seller will promptly give notice to the Indenture Trustee and (ii) a Servicer, no further Additional Balances relating to Mortgage Loans serviced by such Servicer will be transferred to the Issuer and such Servicer will promptly give notice to the Indenture Trustee and the Insurer of any such filing or appointment. Within 15 days, the Indenture Trustee notify the Holders of the Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date Event, the related Servicer shall no longer receive any principal funds upon the transfer of Additional Balances to the Issuer in respect of the Additional Balance Contributed Amount but will be deemed to have been rescinded with respect to a Series if reimbursed directly by the Trustee, at the direction Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other SeriesClass L Certificate. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date The Holder of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series Class L Certificate will be deposited in the Certificate Account reimbursed for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient payments pursuant to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(aSection 5.01(b)(xi), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Structured Asset Securities Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occur:
(a) failure on the part of the Seller (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) occurring five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made hereunder, or Sellers' Representative(ii) to deliver possession of files and record assignments when required or any other Seller shall fail (iii) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Seller set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders and which, in the case of clause (iii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders or the Credit Enhancer for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Credit Enhancer or the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Seller by the Trustee; or (ii) an Exercise Event (as such term is defined in the Option Agreement Trustee or the Port Option AgreementCredit Enhancer, as applicable) shall occur under or to the Option Agreement or Seller and the Port Option Agreement, as applicableTrustee by the Holders of Class A Certificates evidencing not less than 51% of the aggregate Percentage Interests of the Class A Certificates;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other the Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Class A Certificateholders or the Credit Enhancer are materially and adversely affected, and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Credit Enhancer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Seller by the Trustee or the Credit Enhancer, or to the Seller and the Trustee and the Credit Enhancer by the Holders of Class A Certificates evidencing not less than 51% of the aggregate Percentage Interests of the Class A Certificates; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Seller has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee and the Credit Enhancer may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other the Seller shall voluntarily or inadvertently go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Seller or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other the Seller and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required to be registered (i) as an "investment company" within the meaning of the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HFC Revolving Corp)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccurs during the Managed Amortization Period:
(a) The failure of the Sponsor or the Master Servicer to make any payment shall not be made on the date or deposit required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal Sale and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Servicing Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of within three (3) Business Days after the date payment or deposit was required in this Master Trust Agreementto be made;
(b) (i) TMM (as a Seller, Guarantor, The failure of the Sponsor or Sellers' Representativethe Master Servicer to cause the Depositor to observe or perform in any material respect the covenants of the Depositor in Section 2.01(h) or any other Seller shall fail 2.05 of the Sale and Servicing Agreement;
(c) The failure of the Sponsor to duly observe or perform in any material respect any other covenant or agreement covenants of the Sellers Sponsor in any Transaction Document, which failure the Sale and Servicing Agreement that materially and adversely affects the interests of the Noteholders and that continues unremedied and continues to affect materially and adversely the interests of the Noteholders for a period of 30 60 days (PROVIDED, THAT, with respect five days in the case of any failure to transfer to the covenant set forth Trust Eligible Substitute Mortgage Loans or deposit into the Collection Account the Transfer Deposit Amount in SECTION 3.2(zaccordance with Section 2.07(a) hereof of the period shall be seven (7) daysSale and Servicing Agreement) after the earlier date on which written notice of the failure, requiring it to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof be remedied, shall have been given to such Person the Sponsor by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Sponsor and the Port Option Agreement, as applicable) shall occur under Indenture Trustee by the Option Agreement or Holders of not less than 51% of the Port Option Agreement, as applicableaggregate Outstanding Amount of all Classes of Notes;
(cd) (i) any Any representation or warranty made by TMM (as a Seller, Guarantor, the Sponsor or Sellers' Representative) or any other Seller the Depositor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, Sale and Servicing Agreement proves to have been incorrect in any material respect when made, the effect as a result of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent the interests of the Noteholders are materially and adversely affected and that continues to the appointment of a conservator, receiver or liquidator be incorrect in any bankruptcymaterial respect and continues to affect materially and adversely the interests of the Noteholders for 60 days after the date on which notice of the failure, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating requiring it to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairsbe remedied, shall have been entered against TMM given to the Sponsor or such other Seller and such action is not discharged within sixty (60) days; or any encumbrancer takes possession ofthe Depositor, as the case may be, by the Indenture Trustee, or a trustee, administrator or receiver is appointed forto the Sponsor, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller shall admit in writing its inability to pay its debts generally as they become dueDepositor, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required to be registered (i) as an "investment company" within the meaning of the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Indenture Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other Holders of not less than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) 51% of the aggregate Collections generated by Outstanding Amount of all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event Classes (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event pursuant to this subparagraph (d) shall not arise occur if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction Sponsor has accepted retransfer of the Series Required Investor Certificateholders of related Mortgage Loans or substituted for them during the 60-day period (or such Series, by written notice to the Sellers' Representative longer period (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"exceed an additional 60 days) as the Indenture Trustee may specify) in accordance with the Sale and Servicing Agreement); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.;
Appears in 1 contract
Samples: Indenture (CWHEQ Revolving Home Equity Loan Trust, Series 2006-A)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Transferor (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) occurring five Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) to record assignments when required, or (iii) duly to observe or perform in any material respect the covenants of the Transferor set forth in Section 2.4(b) or any other Seller shall fail (iv) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Transferor set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Certificate Insurer and which, in the case of clause (iv), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Transferor by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Transferor and the Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Transferor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect made and as a result of which the interests of the Investor Certificateholders or the Certificate Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Investor Certificateholders or the Certificate Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Transferor by the Trustee, or to the Transferor and the Trustee by either the Certificate Insurer or the Holders of Investor Certificates evidencing Percentage-Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor shall have accepted retransfer of the related Mortgage Loans or all Mortgage Loans if applicable during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other Seller the Transferor shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Transferor or of or relating to all or substantially all of its property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Transferor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Transferor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations (any such event, an "Insolvency Event");
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or (ii) under the Trust Indenture Actof 1940, as amended;
(fe) TMM any Event of Default or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
Trigger Event (g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
event described in clause (h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%iv) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assetsdefinition thereof) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurredoccur; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In the case of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred without any notice or other action on the part of the Trustee immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chevy Chase Bank FSB)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one The following shall constitute Rapid Amortization Events with respect to each Class of the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) failure on the part of the Issuer, the Sponsor, the Servicer or the Company, as the case may be, (i) to make any payment shall not be made on or deposit required by the date required under terms of this Master Trust Indenture, the Sale and Servicing Agreement or the applicable Supplement (includingInsurance Agreement, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments within two Business Days after notification that such payment or prepayments deposit is required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantormade, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Issuer, the Sponsor, the Company or the Servicer, as the case may be, set forth in any Transaction Documentthe Sale and Servicing Agreement or the Insurance Agreement or this Indenture, as the case may be, which failure failure, in each case, materially and adversely affects the interests of the Noteholders or the Insurer and which, in the case of clause (ii), continues unremedied and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Sponsor, the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer or the Company, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Sponsor, the Servicer or the Port Option AgreementCompany, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount;
(c) (ib) any representation or warranty made by TMM (the Issuer, the Sponsor, the Servicer or the Company, as the case may be, in this Indenture, the Sale and Servicing Agreement or the Insurance Agreement shall prove to have been incorrect in any material respect when made, as a Sellerresult of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, Guarantorrequiring the same to be remedied, shall have been given to the Issuer, the Sponsor, the Servicer or the Company, as the case may be, by the Indenture Trustee, or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Issuer, the Sponsor, the Servicer or the Company, as the case may be, and the Indenture Trustee by either the Insurer or the Holders of Notes evidencing more than 50% of the Outstanding Amount; provided, however, that with respect to any such representation or warranty made with respect to the Purchased Receivablesrelated Mortgage Loans, proves a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have been incorrect when made, occurred hereunder if the effect Servicer or the Sponsor has accepted retransfer of which shall result such related Mortgage Loan or related Mortgage Loans during such period (or such longer period not to exceed an additional 60 days as the Indenture Trustee may specify with the consent of the Insurer) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Company, the Sponsor or the Issuer or any other Seller of their Subsidiaries or Affiliates shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Company, the Sponsor, or the Trust or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Company, the Sponsor of the Trust and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed forthe Company, the whole Sponsor or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Trust shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) as of a given date, the aggregate of all draws under the Trust Indenture Act;Policy related to either Class exceeds 1% of the related Pool Balance as of the Initial Cut-Off Date; and
(f) TMM default in the payment of any interest, principal or any other Seller shallinstallment of principal on the related Class of Class A Notes when the same becomes due and payable, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability and such default continues for a period of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment five Business Days. The occurrence of a court Rapid Amortization Event with respect to a Class of competent jurisdiction in an action in which Notes will not cause the assertion of such cessation is made by or on behalf occurrence of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments Rapid Amortization Event with respect to the Purchased Receivables other Class of Notes unless the same event or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust circumstance is a Rapid Amortization Event with respect to both Classes. In the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment case of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent event described above in clauses (15%a) or more of the consolidated total assets of through (ie) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with respect to a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case Class of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date Notes will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described herein or in such clauses, the Trustee, acting at Indenture or the direction Sale and Servicing Agreement either (i) the Indenture Trustee or Holders holding Notes evidencing more than 50% of the Series Required Investor Certificateholders Outstanding Amount of such SeriesClass of Notes, with the prior written consent of the Insurer (so long as there is no continuing default by the Insurer in the performance of its obligations under the Policy) or (ii) the Insurer (so long as there is no continuing default by the Insurer in the performance of its obligations under the Policy), by written notice to the Sellers' Representative Issuer, the Insurer, the Sponsor, and the Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Holders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred with respect to such Class as of the date of such notice, or in the case of any event described in clause (f), the Indenture Trustee or Holders holding Notes evidencing more than 50% of the Outstanding Amount of such Class of Notes by such written notice declare that a Rapid Amortization Commencement Date Event has occurred with respect to such SeriesClass as of the date of such notice. In Following the case occurrence of any event set forth in SECTION 7.1(d) or (g) above, a Rapid Amortization Commencement Date Event described in clauses (a) through (e) the Insurer (so long as there is no continuing default by the Insurer in the performance of its obligations under the Policy) shall have the right to direct the Indenture Trustee to sell the related Pool of Mortgage Loans. Following the occurrence of a Rapid Amortization Event described in clause (f), the Holders holding Notes evidencing more than 50% of the Outstanding Amount of such Class of Notes shall have the right to so direct the Indenture Trustee. If the Insurer has directed such sale, the Policy will cover any amounts by which such remaining net proceeds are insufficient to pay the related Note Principal Balance of such Class of Notes, together with respect all accrued and unpaid interest thereon. In addition to all Series the consequences of a Rapid Amortization Event discussed above, if the Sponsor voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Sponsor, on the day of any such filing or appointment no further Additional Balances will be deemed transferred to have occurred without the Trust, and the Sponsor will promptly give notice to the Indenture Trustee and the Insurer of any such filing or appointment. Within 15 days, the Indenture Trustee will publish a notice or other action on the part of the Trustee immediately upon the occurrence of such event. In If so directed by the case Insurer, so long as no Insurer Default shall have occurred and be continuing, the Indenture Trustee will sell, dispose of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded or otherwise liquidate the Trust Property with respect to the Mortgage Loans in each Pool in a Series if commercially reasonable manner and on commercially reasonable terms. So long as no Event of Servicing Termination has occurred and is continuing, any such sale, disposal or liquidation and such sale, disposal or liquidation will be "servicing retained" by the TrusteeServicer. With respect to each Pool and the related Class of Notes, at the direction of the Series Required Investor Certificateholders net proceeds of such Series, by written notice sale will first be paid to the Sellers' Representative, declares that Insurer to the extent of unreimbursed draws under the Policy related to such Rapid Amortization 83 Commencement Date has been deemed not Class of Notes and other amounts owing to have occurred the Insurer (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice but only if an Insurer Default shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and be continuing). The remainder of such net proceeds will then be distributed to the date Holders of the second Distribution Date immediately following such date (Class of Notes insofar as may be necessary to reduce the "NOTICE PERIOD")Note Principal Balance of such Class, together with all accrued and unpaid interest due thereon, to zero. During If the Notice Period with respect Insurer has directed the Indenture Trustee to a Seriesundertake such sale or liquidation, all Collections allocable to the Policy will cover any amount by which such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and remaining net proceeds are insufficient to pay the Certificate Balance of such Series plus related Note Principal Balance, together with all accrued and unpaid interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDEDdue thereon, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Seriesin full.
Appears in 1 contract
Samples: Indenture (Greenpoint Home Equity Loan Trust 1999 2)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of (a) The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) default in the payment of any payment shall not be made on the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts Controlling Class Note when the same becomes due and payable or the failure to pay any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments installment of principal of the Controlling Class Notes in accordance with Section 5.03(b), and interest on any Distribution Date, such payment shall not be made default continues for a period of thirty (30) days after five Business Days, or a failure to pay the date required entire principal of any Note when the same becomes due and payable under the Master Trust Agreement and in Indenture or on the case of any payment of principal or interest on a Distribution Final Scheduled Payment Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;.
(b) (i) TMM (failure on the part of the Issuer, the Master Servicer, the Seller or a Servicer, as a Sellerthe case may be, Guarantor, or Sellers' Representative) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the material covenants or agreement agreements of the Sellers Issuer, the Master Servicer, the Seller or a Servicer, as the case may be, set forth in any Transaction Documentthe Mortgage Loan Sale Agreement, this Agreement, the Indenture, the related Transfer Agreement, the related Servicing Agreement or the Insurance Agreement, as the case may be, and which failure continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Issuer, the period shall be seven (7) days) after Master Servicer, the earlier to occur of (x) actual knowledge by Seller or a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Issuer, the Master Servicer, the Seller or the Port Option Agreementa Servicer, as applicable) shall occur under the Option Agreement case may be, and the Indenture Trustee by the Insurer or Holders of Notes evidencing more than 50% of the Port Option Agreement, as applicableOutstanding Amount of the Controlling Class Notes;
(c) (i) any representation the Issuer, the Master Servicer, the Depositor, the Seller or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) Servicer or any other Seller in any Transaction Document of their Subsidiaries or in any instrumentAffiliates shall voluntarily go into liquidation, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves to have been incorrect when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Depositor, the Seller or a Servicer or of or relating to all or substantially all of its such Person’s property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Issuer, the Master Servicer, the Depositor, the Seller or such other Seller a Servicer and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession ofthe Issuer, the Master Servicer, the Depositor, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) cumulative draws in respect of interest under the Trust Indenture Act;Policy exceed 1% of the aggregate Cut-off Date Pool Balance or there is any draw in respect of principal; and
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability an Event of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables Servicing Termination with respect to a Servicer pursuant to the Trust related Servicing Agreement or an Event of Master Servicer Termination pursuant to this Master Trust Agreement and has occurred. In the Receivables Sale Agreements shall generally cease to be an absolute assignment case of all right, title and interest any event described in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
clauses (h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(ca), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currenciesb), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, (e) and either (if) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthis Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Notes evidencing more than 50% of such Seriesthe Outstanding Amount of the Controlling Class Notes, in each case with the prior written consent of the Insurer (so long as the Class A Notes are Outstanding and no Insurer Default has occurred and is continuing) or the Insurer (so long as the Class A Notes are Outstanding and no Insurer Default has occurred and is continuing), by written notice to the Sellers' Representative Issuer, the Insurer, the Seller, and the Master Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, . If a Rapid Amortization Commencement Date has occurred with respect Event occurs due to such Series. In the case occurrence of any event set forth in SECTION 7.1(d(c) or (gd) above, a Rapid Amortization Commencement Date Event will automatically occur. Following the occurrence of a Rapid Amortization Event, if so directed by the Insurer, so long as the Class A Notes are Outstanding and no Insurer Default has occurred and is continuing, the Indenture Trustee or its designated agent will and with the consent of the Insurer may, sell, dispose of or otherwise liquidate the Collateral with respect to all Series the Mortgage Loans in a commercially reasonable manner and on commercially reasonable terms. With respect to the Notes, the net proceeds of such sale will be deemed paid (i) first, pro rata to have occurred the Indenture Trustee the Indenture Trustee Expense Amount (without regard the caps included in the definition of Indenture Trustee Expense Amount) and to the Owner Trustee any notice unpaid fees due and owing to it, (ii) second, to the Holders of the Class A Notes, insofar as may be necessary to reduce the Note Principal Balance of such Class, together with all accrued and unpaid interest due thereon, to zero, (iii) third, to reimburse the Insurer to the extent of unreimbursed draws under the Policy and other amounts owing to the Insurer, (iv) fourth, to the Holders of the Class M1 and Class M2 Notes sequentially in that order, pro rata within each Class based on Note Principal Balances, insofar as may be necessary to reduce the Note Principal Balance of each such Class, together with all accrued and unpaid interest due thereon, to zero, (v) fifth, pro rata to the Indenture Trustee and the Owner Trustee, any unreimbursed expenses due and owing to them, including, with respect to the Indenture Trustee, all unreimbursed expenses incurred by the Indenture Trustee in connection with such Rapid Amortization Event and sale of the Collateral and (vi) sixth, to the Residual Certificateholders, in the order and priority described in Section 5.03(b)(xv), any remaining amounts. In addition to the consequences of a Rapid Amortization Event discussed above, if the Seller or other action a Servicer voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Seller or a Servicer, on the part day of any such filing or appointment with respect to (i) the Seller, no further Additional Balances will be transferred to the Issuer and the Seller will promptly give notice to the Indenture Trustee and (ii) a Servicer, no further Additional Balances relating to Mortgage Loans serviced by such Servicer will be transferred to the Issuer and such Servicer will promptly give notice to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding) of any such filing or appointment. Within 15 days, the Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In Upon the case occurrence of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed Event, the Servicer shall only receive principal funds upon the transfer of Additional Balances to have been rescinded with respect to a Series if the TrusteeTrust from the Reserve Fund, at funded by the direction purchase of such Additional Balances by the Holder of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"Class L Certificate in accordance with Section 2.01(b); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Lehman ABS Corp. Home Equity Loan Trust 2005-1)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occuroccur during the Managed Amortization Period:
(a) failure on the part of the Transferor (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of occurring three (3) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) duly to observe or perform in any material respect the covenants of the Transferor set forth in Section 2.04(a) or any other Seller shall fail (iii) duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Transferor set forth in any Transaction Documentthis Agreement, which failure failure, in each case, materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and which, in the case of clause (iii), continues unremedied and continues to affect materially and adversely the interests of the Certificateholders for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Transferor by the Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement or Transferor and the Port Option Agreement, as applicable) shall occur under Trustee by the Option Agreement or the Port Option Agreement, as applicableHolders of Investor Certificates evidencing Voting Rights aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, the Transferor or Sellers' Representative) or any other Seller the Depositor in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Investor Certificateholders or the Credit Enhancer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Certificateholders or the Credit Enhancer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result have been given to the Transferor or the Depositor, as the case may be, by the Trustee, or to the Transferor, the Depositor and the Trustee by either the Credit Enhancer or the Holders of Investor Certificates evidencing Voting Rights aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Transferor has accepted retransfer of the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) as the Trustee may specify) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM the Transferor or any other Seller the Depositor shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Transferor or the Depositor, or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Transferor or such other Seller the Depositor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, the Transferor or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required become subject to be registered (i) registration as an "investment company" within the meaning of under the Investment Company Act or (ii) under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case1940, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurredamended; or
(se) a Receivable Shortfall Payment the aggregate of all draws under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. the Policy exceeds __% of the Initial Cut-Off Date Pool Balance; then, in the case of any event described in subparagraph (a) or (b) after the applicable grace period, if any, set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clausessubparagraphs, either the Trustee, acting at the direction Credit Enhancer or the Holders of the Series Required Investor Certificateholders of such SeriesCertificates evidencing Voting Rights aggregating more than 51%, by written notice given in writing to the Sellers' Representative Transferor, the Depositor and the Servicer (and to the Trustee if given by either the Credit Enhancer or the Investor Certificateholders) may declare that an early amortization event (a "RAPID AMORTIZATION NOTICERapid Amortization Event") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraph (c), (d) or (g) abovee), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Credit Enhancer or the Investor Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events (each a "RAPID AMORTIZATION EVENT") shall occur:: 108
(a) failure on the part of the Originator (i) to make any payment shall not be made or deposit required by the terms of this Agreement, on or before the date required under this Master Trust Agreement or the applicable Supplement (including, without limitation, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments or prepayments required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of occurring three (3) Business Days after the date such payment or deposit is required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantorto be made herein, or Sellers' Representative(ii) or any other Seller shall fail duly to duly observe or perform in any material respect any other covenant covenants or agreement agreements of the Sellers Originator set forth in any Transaction Documentthis Agreement, which failure failure, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof the period shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Originator by the Trustee; or (ii) an Exercise Event (as such term is defined in , and the Option Agreement Trustee by the Certificate Insurer or the Port Option Agreement, as applicable) shall occur under the Option Agreement or the Port Option Agreement, as applicableHolders of Class A Certificates evidencing Percentage Interests aggregating not less than 51%;
(c) (ib) any representation or warranty made by TMM (as a Seller, Guarantor, or Sellers' Representative) or any other Seller the Originator in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves this Agreement shall prove to have been incorrect in any material respect when made, and which continues to be incorrect in any material respect for a period of 60 days after the effect date on which written notice of which such failure, requiring the same to be remedied, shall result have been given to the Originator, by the Trustee, or to the Originator and the Trustee by either the Certificate Insurer or the Holders of Class A Certificates evidencing Percentage Interests aggregating not less than 51%; provided, however, that a Rapid Amortization Event pursuant to this subparagraph (b) shall not be deemed to have occurred hereunder if the Originator has purchased or made a substitution for the related Mortgage Loan or Mortgage Loans during such period (or such longer period (not to exceed an additional 60 days) with the consent of the Trustee and the Certificate Insurer) in a Material Adverse Effectaccordance with the provisions hereof;
(dc) TMM or any other Seller the Originator shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Originator, or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM or such other Seller the Originator and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Originator shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;; 109
(ed) the Trust shall be required become subject to be registered (i) regulation as an "investment company" within the meaning of under the Investment Company Act or of 1940, as amended;
(iie) a claim is made under the Trust Indenture Act;Certificate Insurance Policy, or
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability of any Transaction Document or assert the matters set forth in SECTION 7.1(g) below;
(g) the assignment removal of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease to be an absolute assignment of all right, title and interest in and to the Purchased Receivables for purposes of Mexican law; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be in a currency other than Dollars;
(j) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding Servicer following the occurrence of such an event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any permitting removal of the Transaction Documents, shall have ceased Master Servicer pursuant to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse EffectSection 8.20 thereof; PROVIDED, HOWEVER, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event described in subparagraph (a), (b) or (f) after the applicable grace period, if any, set forth above other in such subparagraphs, either the Trustee with the consent of the Certificate Insurer, the Certificate Insurer or the Holders of Class A Certificates with the consent of the Certificate Insurer evidencing Percentage Interests aggregating more than 51%, by notice given in SECTION 7.1(dwriting to the Certificate Insurer, the Originator and the Master Servicer (and to the Trustee if given by either the Certificate Insurer or the Class A Certificateholders) or SECTION 7.1(g), may declare that an early amortization event (a "Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any applicable grace period described in such clauses, the Trustee, acting at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative (the "RAPID AMORTIZATION NOTICEEvent") declares that, has occurred as of the date of such notice, a Rapid Amortization Commencement Date has occurred with respect to such Series. In and in the case of any event set forth described in SECTION 7.1(dsubparagraph (c), (d) or (g) abovee), a Rapid Amortization Commencement Date with respect to all Series will be deemed to have occurred Event shall occur without any notice or other action on the part of the Trustee Trustee, the Certificate Insurer or the Class A Certificateholders, immediately upon the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1996-A)
Rapid Amortization Events. Section 7.1 RAPID AMORTIZATION EVENTS. If any one of The following shall constitute Rapid Amortization Events with respect to the following events (each a "RAPID AMORTIZATION EVENT") shall occurNotes:
(a) failure on the part of the Seller, the Depositor or the Servicer, as the case may be, (i) to make any payment shall not be made on or deposit required by the date required under terms of this Master Trust Indenture, the Sale and Servicing Agreement or the applicable Supplement (includingInsurance Agreement, without limitationas applicable, Receivable Shortfall Payments, payments of principal and interest on any Distribution Date, payments of 80 Additional Amounts and any other payments within five Business Days after notification that such payment or prepayments deposit is required to be made by the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of any payment other than payments of principal and interest on any Distribution Date, such payment shall not be made for a period of thirty (30) days after the date required under the Master Trust Agreement and in the case of any payment of principal or interest on a Distribution Date, such payment shall not be made for a period of three (3) Business Days after the date required in this Master Trust Agreement;
(b) (i) TMM (as a Seller, Guarantormade, or Sellers' Representative(ii) or any other Seller shall fail to duly observe or perform in any material respect any other covenant the covenants or agreement agreements of the Sellers Seller, the Depositor or the Servicer, as the case may be, set forth in any Transaction Documentthe Sale and Servicing Agreement or the Insurance Agreement or this Indenture, which failure as the case may be, and which, in the case of clause (ii), continues unremedied for a period of 30 60 days (PROVIDEDafter the date on which written notice of such failure, THATrequiring the same to be remedied, with respect shall have been given to the covenant set forth in SECTION 3.2(z) hereof Seller, the period shall be seven (7) days) after Depositor or the earlier to occur of (x) actual knowledge by a Responsible Officer of such Person and (y) notice thereof to such Person Servicer, as the case may be, by the Indenture Trustee; , or (ii) an Exercise Event (as such term is defined in to the Option Agreement Seller, the Depositor or the Port Option AgreementServicer, as applicable) shall occur under the Option Agreement or case may be, and the Port Option Agreement, as applicableIndenture Trustee by the Insurer;
(c) (ib) any representation or warranty made by TMM (as a the Seller, Guarantorthe Depositor or the Servicer, as the case may be, in this Indenture, the Sale and Servicing Agreement or Sellers' Representative) or any other Seller in any Transaction Document or in any instrument, document or certificate delivered by such Person pursuant thereto, or any information required to be given by such Person to the Trustee with respect to the Purchased Receivables, proves Insurance Agreement shall prove to have been incorrect in any material respect when made, the effect as a result of which the interests of the Noteholders or the Insurer are materially and adversely affected and which continues to be incorrect in any material respect and continues to affect materially and adversely the interests of the Noteholders or the Insurer for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall result in have been given to the Depositor, the Seller or the Servicer, as the case may be, by the Indenture Trustee, or to the Depositor, the Seller or the Servicer, as the case may be, and the Indenture Trustee by the Insurer; provided, however, that with respect to any such representation or warranty made with respect to any Mortgage Loan, a Material Adverse Effect;Rapid Amortization Event shall not be deemed to occur if the Seller has purchased such Home Equity Loan within 90 days (or within an additional 30 days with the consent of the Indenture Trustee and the Insurer).
(dc) TMM the Seller or the Depositor or any other Seller of their Subsidiaries or Affiliates shall voluntarily go into liquidation, consent to the appointment of a conservator, conservator or receiver or liquidator or similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Seller or the Depositor or of or relating to all or substantially all of its such Person's property; , or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator conservator, receiver, liquidator or receiver or liquidator similar person in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against TMM the Seller or such other Seller the Depositor and such action is not discharged within sixty (60) decree or order shall have remained in force undischarged or unstayed for a period of 30 days; or any encumbrancer takes possession of, the Seller or a trustee, administrator or receiver is appointed for, the whole or any substantial part of the assets of TMM or such other Seller and such action is not discharged within sixty (60) days; or TMM or such other Seller Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ed) the Trust shall be required Issuer becomes subject to be registered (i) regulation by the Securities and Exchange Commission as an "investment company" company within the meaning of the Investment Company Act or of 1940, as amended;
(iie) any draw is made under the Trust Indenture ActPolicy in respect of principal of the Notes;
(f) TMM or any other Seller shall, in any court or other governmental proceeding, contest in any manner the validity, binding nature, or enforceability an Event of any Transaction Document or assert the matters set forth in SECTION 7.1(g) belowServicing Termination has occurred;
(g) the assignment of the Purchased Receivables to the Trust pursuant to this Master Trust Agreement and the Receivables Sale Agreements shall generally cease Issuer is determined to be an absolute assignment of all right, title and interest in and to association taxable as a corporation that does not constitute a "qualified REIT subsidiary" under the Purchased Receivables Code for purposes of Mexican lawfederal income tax purposes; or the Trustee, on behalf of the Trust, shall cease to either own or have a first priority, perfected security interest in the Purchased Receivables for purposes of United States law, in either case, as determined by a final judgment of a court of competent jurisdiction in an action in which the assertion of such cessation is made by or on behalf of a Person other than the Trustee or any Certificateholder;or
(h) Mexico shall impose foreign exchange controls that have an Event of Default has occurred. In the effect, intended or not, of impeding the flow of payments with respect to the Purchased Receivables or the transfer of funds from the Peso Denominated Account or the Sweep Account to the Collection Account or from the Collection Account to any Series Account as provided for in this Master Trust Agreement, any Supplement or other Transaction Document which exchange controls, as they relate to such flow of payments, are not removed within fifteen (15) days from their imposition;
(i) except as provided in SECTION 4.1(c), on any Determination Date, the currency case of any Collections received by the Trust with respect to the Purchased Receivables during the prior Collection Period shall be event described in a currency other than Dollars;
clauses (ja) any Seller shall change the nature or conduct of its business relating to Eligible Open Accounts Receivables if any such change is reasonably likely to result in a Material Adverse Effect;
through (kh) any moratorium imposed by any government or legislative authority on the repayment of any Indebtedness of any Seller shall occur, or any governmental authority enactment shall occur that expropriates, condemns or causes the compulsory purchase of fifteen percent (15%) or more of the consolidated total assets of (i) TMM or (ii) any other Seller if the Collections generated by the Eligible Purchased Receivables sold by that Seller to the Trust accounted for in excess of five percent (5%) of the aggregate Collections generated by all Purchased Receivables sold by all Sellers to the Trust during the twelve-month period immediately preceding the occurrence of such event (excluding any amount attributable to goodwill or other intangible assets) as determined by reference to the then most recent audited consolidated financial statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in other currencies), taken together with any other judgment or order then outstanding, shall have been entered against TMM or any of its Restricted Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and either (i) such judgment was prosecuted by any creditor or (ii) such judgment or order shall have not been vacated, discharged, stayed or bonded pending appeal, for a period of sixty (60) calendar days after the date of entry of such judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or any of its Restricted Subsidiaries, or any other Seller or any such Seller's consolidated Subsidiaries (whether at stated maturity, required prepayment, acceleration, demand or otherwise), 82 individually or in the aggregate in excess of U.S. $10,000,000 or any default or event of default shall occur under any agreement or instrument evidencing or relating to such Indebtedness, including under either Indenture, if the effect thereof is to accelerate the maturity thereof or to permit the holder or holders of such Indebtedness, or an agent or trustee on its or their behalf, to accelerate the maturity thereof or to require the mandatory prepayment or redemption thereof;
(n) any governmental or legislative authorization, approval, license or consent, if any, required by the laws of Mexico to enable TMM or any other Seller or the Trust lawfully to enter into and perform the Transaction Documents, to exercise the rights purported to be granted to the Trust therein, to perform the obligations purported to be assumed by the Seller therein or to ensure the legality, validity, enforceability and admissibility in evidence in Mexico of any of the Transaction Documents, shall have ceased to be in full force and effect in all material respects for a period of thirty (30) days or more;
(o) if the Servicer is TMM, any Servicer Default shall occur and be continuing;
(p) on any two consecutive Determination Dates, (A) the Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is terminated or not renewed prior to the Series 2001-A Termination Date, or (B) any party thereto shall default thereunder which default is reasonably likely to result in a Material Adverse Effect; PROVIDED, HOWEVERabove, a Rapid Amortization Event shall not arise if such Obligor Agreement is terminated or is in default and the Sellers immediately replace such Obligor Agreement with a new Eligible Obligor acceptable to the Investor Certificateholders in their sole and absolute discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i) OR (ii) hereof, shall occur on any two consecutive Transfer Dates. then, in the case of any event set forth above other than in SECTION 7.1(d) or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have occurred with respect to a Series only if, after any the applicable grace period period, if any, described in such clausesthe Indenture or Sale and Servicing Agreement, the Trustee, acting at the direction any of the Series Required Investor Certificateholders Indenture Trustee or Holders holding Notes evidencing more than 50% of such Seriesthe Outstanding Amount, in each case with the prior written consent of the Insurer (so long as no Insurer Default has occurred and is 58 continuing) or the Insurer (so long as no Insurer Default has occurred and is continuing), by written notice to the Sellers' Representative Issuer, the Insurer, the Depositor, and the Servicer (and to the "RAPID AMORTIZATION NOTICE"Indenture Trustee, if given by the Noteholders or the Insurer) declares that, declare that a Rapid Amortization Event has occurred as of the date of such notice, . In addition to the consequences of a Rapid Amortization Commencement Date has occurred with respect to such Series. In Event discussed above, if the case Depositor voluntarily files a bankruptcy petition or goes into liquidation or any person is appointed a receiver or bankruptcy trustee of the Depositor, on the day of any event set forth in SECTION 7.1(d) such filing or (g) above, a Rapid Amortization Commencement Date with respect to all Series appointment no further Additional Balances will be deemed transferred to have occurred without the Trust and the Depositor will promptly give notice to the Indenture Trustee and the Insurer of any notice such filing or other action on appointment. Within 15 days, the part Indenture Trustee notify the Holders of the Trustee immediately upon Notes of the occurrence of such event. In the case of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization Commencement Date will be deemed to have been rescinded with respect to a Series if the Trustee, at the direction of the Series Required Investor Certificateholders of such Series, by written notice to the Sellers' Representative, declares that such Rapid Amortization 83 Commencement Date has been deemed not to have occurred (such written notice, a "WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid Amortization Notice given with respect to any other Series. Any Waiver Notice shall be given within the period commencing on the date on which the Rapid Amortization Commencement Date has been deemed to have occurred and the date of the second Distribution Date immediately following such date (the "NOTICE PERIOD"). During the Notice Period with respect to a Series, all Collections allocable to such Series will be deposited in the Certificate Account for such Series until the amount on deposit in the applicable Certificate Account equals an amount sufficient to pay such Series' Series Percentage of the Trustee Fee and the Servicing Fee and to pay the Certificate Balance of such Series plus interest thereon at the Certificate Rate (calculated as during a Rapid Amortization Period) through the expiration of the Notice Period; PROVIDED, HOWEVER, that until the expiration of the Notice Period, distributions to the Certificateholders (other than any Seller or Affiliate thereof or any Subordinated Certificateholder) will continue to be made on each Distribution Date. Notwithstanding the foregoing, the Series Required Investor Certificateholders of a Series may not direct the Trustee to give a Rapid Amortization Notice with respect to such Series if a Rapid Amortization Event of the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result of a failure to pay or perform or a breach with respect to terms or conditions of a Supplement relating to another Series.
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